Floyd Abrams (Supreme Court lawyer specializing in First Amendment)

[0] Welcome, welcome, welcome to armchair, expert, experts, an expert.

[1] I'm Dak Shepard.

[2] I'm joined by Monica Padman.

[3] Hi.

[4] How you doing, buddy?

[5] You're in a matching gray onesie.

[6] Very athletic look, very 50s.

[7] Like, you're in gym class in the 50s.

[8] That's what I was going for.

[9] I walked here.

[10] We have a very, very flattering guest, as sometimes happens.

[11] Today is Floyd Abrams.

[12] Floyd Abrams is a legendary First Amendment attorney who has argued 14 cases before the Supreme Court of the United States.

[13] Just right out of the gates.

[14] The Pentagon Papers, very famous.

[15] New York Times printed some leaked papers about our involvement in the Vietnam War, how we had gotten there, commissioned by McNamara.

[16] Huge kind of all the president's men level case that he won as a young attorney after the New York Times' representation fired them.

[17] Yeah.

[18] It's very impressive.

[19] It's very cool.

[20] He's had a bunch of huge historic landmark cases and he knows more about the First Amendment than probably anyone else.

[21] So it was a blast talking to him.

[22] Okay, now.

[23] Housekeeping.

[24] we want to address there was not a question in monday's fact check for armchair stories which is not to say that we have not embraced it we love the feedback we're going to do it we're going to go hard monica came up with a great system and here's how it rolls it's now called armchair anonymous so you're going to go to the website and you're going to have been www armchair expert pod .com that's wwww armchair expert pod dot com and you're going to see armchair anonymous and when you pull that down there's going to be four questions if you have a story about any of those four questions, fill it out, and we're going to go through them, and we're going to start banging out these stories.

[25] Monica, hit us with the four stories really quick.

[26] Okay, the four stories for this next month are...

[27] The four promises.

[28] Have you ever found yourself in a swinger situation accidentally?

[29] Accidentally.

[30] Yeah.

[31] Oh, my gosh.

[32] Yeah, it needs to be an accident.

[33] We don't want to hear about you guys just like deciding.

[34] You're going down to a heed -oh.

[35] Yeah.

[36] No thanks.

[37] No one wants to hear that story.

[38] Accidentally.

[39] Yeah.

[40] What is the craziest thing that's happened to you on an airplane?

[41] Yeah, that's happened while you've been on an airplane.

[42] Easter egg, you're going to hear my mom's soon.

[43] That's right.

[44] Tell us about a person you are in love with but can't be.

[45] Mm -hmm.

[46] And then, have you ever been scams?

[47] Oh, have you ever been scammed?

[48] Tell us about it.

[49] And we also have to nod to Perfect 10 Charlie.

[50] That's right.

[51] Who is most excited about this new show, armchared.

[52] He came up with most of those questions, and he's very excited.

[53] he's going to be our resource because he's a devious motherfucker and he sits around and thinks of devious things and that is why I like him.

[54] Okay, please enjoy Floyd Abrams.

[55] Wondry Plus subscribers can listen to Armchair Expert early and ad free right now.

[56] Join Wondry Plus in the Wondry app or on Apple Podcasts or you can listen for free wherever you get your podcasts.

[57] Hello, sir.

[58] How are you?

[59] Hi, I'm good.

[60] Good to see you both.

[61] Good to see you.

[62] Thanks for coming on.

[63] Yeah, I'm going to say the many folks we've had on, this is the area that it's ridiculous we haven't had an expert on because it's so ubiquitous in our common debate in social conversation.

[64] It's crazy that we haven't had it.

[65] I want to just start by saying, you must know Ted Olson from doing citizens?

[66] Sure.

[67] Are you guys on good terms before I sing his praises?

[68] We're on very good terms and we're on opposite sides politically, but that's.

[69] He and I are close friends.

[70] I think the last time I saw him, though, we were doing a sort of Pentagon Papers in retrospective.

[71] He wasn't on the case, but certainly knows a lot about it.

[72] Yeah.

[73] I found him to be one of the smartest human beings I've ever had dinner with, and not just smart, but complicated in the way that our Constitution is complicated, in the way that our courts are complicated, because he was a part of Citizens United, which people were critical of.

[74] But then he was also fundamental in overturning DOMA, And while we're having this dinner, a waiter comes up to him, and he's crying.

[75] And he said, I can't tell you how important you are to me. I now am married to the love of my life.

[76] And it's like, that's the complexity.

[77] And I love it.

[78] You know, he's in theory, right wing or right politically.

[79] And here he's getting that.

[80] Absolutely.

[81] When I was working with him really closely, one of the terrible international events of recent years was going on.

[82] And he ordered something called a freedom drink.

[83] He said, I don't drink any French wine anymore, because French weren't supporting us.

[84] Right, freedom fries.

[85] Very patriotic with him.

[86] He was drinking only California stuff.

[87] What a stand.

[88] From the layperson's perspective, there seems to be contradiction often with lawyers.

[89] And when I think they might miss is that there's a principle governing it, and that principle may land you on either side of kind of the political spectrum, as happens.

[90] There's two sorts of things that get you on opposite sides.

[91] Sometimes you have clients who have interests.

[92] I've had this happen a few times.

[93] You don't have to represent them because you care enough about the interest.

[94] But at the same time, you also have situations in which it's the principle, not the client.

[95] You're not against the clients.

[96] Right.

[97] But you're there because of the principle.

[98] I mean, that was my situation.

[99] and Citizens United, and I'm sure it was Ted's situation and a number of cases he's been active in.

[100] So for people who aren't totally familiar with you, you are first and foremost an expert on the First Amendment.

[101] You've argued more cases in front of the Supreme Court than anybody, at least at the time of this conversation.

[102] I've not argued more than anybody.

[103] I've argued a lot for a private lawyer.

[104] That is to say, the lawyers who represent the Solicitor General's office argue, 60, 80, really, an enormous amount.

[105] I mean, it's a wonderful job there.

[106] I've argued 14.

[107] I hope a 15th is going to come up.

[108] I'll hear from the Supreme Court one of these days.

[109] Yeah, it's very impressive.

[110] And first and foremost, we should just talk about what the First Amendment actually says versus what you hear on social media, which is freedom of speech.

[111] We get that.

[112] But it's really three components.

[113] Let me start this way.

[114] The First Amendment is an always.

[115] always was a limitation on the government.

[116] That's all it is.

[117] That sounds like I'm minimizing it, but that is everything it is.

[118] When the framers of the Constitution met in 1787 in Philadelphia, they didn't have a bill of rights there at all.

[119] They finally worked out a constitution.

[120] There would be a president.

[121] The president would serve four years.

[122] The Congress would do this.

[123] all about the newly empowered federal government.

[124] Jefferson, a writing from Paris where he was the ambassador to France, and others insisted on having a bill of rights, one critical part of which was saying in so many words, here are things the government can't do.

[125] They're not allowed to abridge the freedom of speech or of the press or freedom of religion.

[126] But for that, we could wind up really in a very different situation.

[127] Now, that said, I have to say that sometimes countries have great reading constitutions.

[128] I will send you someday the North Korean Constitution.

[129] Is it beautiful?

[130] They have a Bill of Rights.

[131] They do.

[132] They say wonderful things.

[133] Freedom of assembly, freedom of speech, privacy, all these wonderful things.

[134] and they mean nothing of it.

[135] It's just a facade.

[136] Yeah, like the elections in Russia.

[137] Well, yeah, yeah.

[138] But I've heard you saying there's a reason it's the first one because really all the following rights are built on the back of that very initial right, which is at all times we must have the freedom to question the powers that be.

[139] Right.

[140] And if we didn't have a limitation on the government's power to limit us in our speech, then we wouldn't be around a full.

[141] effectively to protect the other rights.

[142] They all do come together.

[143] And sure, we have hard cases sometimes reasonable people can disagree on.

[144] But the core proposition that there is a right to have your say, particularly about the government, and indeed particularly when you disagree with the government, it's the first step in distinguishing us from half of the rest of the world.

[145] And our courts, in effect, have gone farther because their interpretation of the First Amendment has been really strong, really protective to the point that I believe we wind up with more in the way of free speech, free press rights than anywhere else.

[146] Yeah, and it's a very bipartisan amendment as opposed to some of the other polarizing ones.

[147] And within it, though, they cover so much in like three or four sentences right out of the Gates addresses religion.

[148] So you will have the freedom to practice virtually anything you want.

[149] You can also be critical of the government.

[150] And then the press is a key component that the press shall have this right.

[151] And I think there's a lot of great stuff for us to get into some particulars of how that's come up and been challenged and been supported.

[152] And of course, you kind of made a name for yourself when you defended the New York Times, which if people don't know their own counsel, wouldn't represent them in this.

[153] They had published some leaked documents called the Pentagon Papers, which was a study of how we had gotten into Vietnam and where we were going by McNamare.

[154] I think you point out, like, had this been World War I or World War II, it probably wouldn't have gone your way.

[155] Because everyone was sick of this war and it was a complicated one, it went your way.

[156] So just, in retrospect, what do you think the actual odds were of that going your way?

[157] At the time, and I was, how shall I say, a younger lawyer then, I think all of us thought that we had a better than 50 -50 chance, We thought we had four members of the court who would be and were solidly on our side.

[158] We thought we would have trouble with at least three of them, and we were right about that.

[159] And so the case really came down to two members of the court, Justice White, Justice Stewart.

[160] And we didn't know.

[161] We couldn't know where they were coming from on this.

[162] I mean, my role was like the number two guy representing the New York Times.

[163] The number one was a professor of mine from Yale Law School.

[164] I knew Monica would love this.

[165] He immediately got to work with his professor.

[166] That's exciting.

[167] I love professors.

[168] I was representing NBC a lot then.

[169] And there was another case about confidential sources of journalists, which we wound up finally losing in the Supreme Court.

[170] And to this day, the Supreme Court has not ruled in favor of the press on protecting confidential sources.

[171] But I was the one who got to call my professor from law school and to say, the media, the New York Times, NBC, CBS would like you to draft the brief for the press in this case involving confidential sources.

[172] First thing my professor, Bickle, is his name, said to me, I said, well, Floyd, you must remember from law school, I'm not a First Amendment voluptuary.

[173] You know, like I don't jump off cliffs in the name of the First Amendment.

[174] Yeah, yeah, yeah.

[175] And I don't think it applies as often as you think it applies.

[176] Yeah.

[177] But he did think that in a case during the war in Vietnam, where the government was saying the worst thing from a. the First Amendment perspective of all, which is you can't print that.

[178] That's called a prior restraint to prevent the government from saying, you can't say that, you can't print that.

[179] There could be arguments about when do you go to jail for printing secret documents.

[180] After the fact, after people got to read it.

[181] All after the fact.

[182] Yeah, liable lawsuits all after the fact.

[183] Liable is another very good example.

[184] We've always had libel law, but it all began.

[185] with the notion that the one thing the government could hardly ever prevent you from doing is saying what you wanted to say if you were prepared to take the risk, that after the fact, the court would say, well, that violated this or that.

[186] Well, and to use the common saying, without it being printed, it doesn't get its day in court.

[187] Like, it can't be evaluated.

[188] We just have to trust that the government deemed that as of ultimately turning that way.

[189] And what the framers talked about back in the 18th century was the one thing that didn't want was licensing, the way it had been way back in England.

[190] Or if you wanted to publish a book, you literally had to go to the licensor, government official, who would decide if this book could be published or it was bad for the people.

[191] And England moved away from that.

[192] And we started out, everybody, there was no disagreement on that, that prior restraints, you know, limitations in advance on the press or on speech, were simply not going to be allowed.

[193] And that was the only reason that we won the Pentagon Papers case.

[194] Yeah.

[195] So there's no area in which the law is more favorable to, more protective of all of us and of the press than the near, not quite absolute ban on prior restraints.

[196] So my understanding of what the goal of the three branches of the government were was maybe this is Adams, but there was a real clever and wise lever put in place to counteract the opinion of the day, right?

[197] So we are all reactionary in general.

[198] If you look at our behavior in the results of things, The court, by at least what Adams thought, was that was the area where it would cool off, clearer heads would prevail, it would not be swayed by the popular opinion of the day, that it would be bound to these timeless documents, and that would, in fact, protect us from that.

[199] But is that the case?

[200] Is that possible?

[201] Clearly, the courts are swayed by the opinion of the day.

[202] Are they not?

[203] And are they increasingly so or less so, or has it been pretty stagnant?

[204] And should they be?

[205] And should they be?

[206] Yeah, even more so.

[207] The opinions of the day ought to govern with respect to most legislation.

[208] That's the theory of living in a democratic country.

[209] But there are times when what we say, at least, that the people want, and I use the word say, just because, of course, Congress doesn't always do what the people want.

[210] But, you know, at least in theory, you know, we go to the polls, we elect people.

[211] We rely on them to make the policy decisions about, what the law should be.

[212] They are tested constitutionally and not just based on the First Amendment, but on the totality of the Constitution to see if they've gone too far.

[213] The framers believed in states' rights.

[214] For example, there's no national divorce law.

[215] Every state has its own.

[216] And if Congress said, well, we think now there ought to be just one because it'd be so much more convenient.

[217] But I don't think that would pass muster.

[218] Because they can't justify it as against what was always understood to be a state power.

[219] Now, the Supreme Court has evolved dramatically, right?

[220] It started, you know, in the basement of some building.

[221] No one was really thinking of it.

[222] Even though it was there in writing, it wasn't there in practice.

[223] There's a great podcast.

[224] I don't know if you're aware of it.

[225] You have your own, which we'll talk about speaking freely with Floyd Abrams, but more perfect.

[226] Are you familiar with that podcast?

[227] No, I don't think so.

[228] It's wonderful.

[229] It's by the folks that do Radio Lab, and it basically takes you through the evolution of the Supreme Court.

[230] Its role has increased and increased, and more and more, it's almost able to steer a law as much as reject it.

[231] And I just want to know if that's something that you like.

[232] You've been a part of that.

[233] When you say to steer a law, you mean by the decisions it does make.

[234] One of the examples was they can't get rid of these sodomy laws, right?

[235] Because no politician's going to run on a campaign to get rid of a sodomy law.

[236] So what ends up happening They're just praying that there'll be a case.

[237] They can bring to the Supreme Court that will rule out all sodomy laws and it'll basically be legislative in essence.

[238] But that kind of jockeying didn't exist in 1810.

[239] No, no, it didn't.

[240] I don't think anybody would argue with the fact that it still rests with Congress to make the overwhelming amount of decision that affect our lives.

[241] And it was supposed to be that way.

[242] You know, sometimes Congress goes way overboard, and we're very lucky to have a system which empowers the Supreme Court ultimately to pass on the constitutionality of these laws.

[243] Do you think nowadays that there's a threat of, like with the Supreme Court justices now, they all have like these big personalities.

[244] Like we know them.

[245] There's in some ways pseudo -celebrities.

[246] Like we know the people.

[247] We know what they stand for.

[248] I feel like with that comes this hard, rigid line in the sand for them.

[249] Like, I'm always voting this.

[250] We already basically know when we go into these trials, what's this person going to do?

[251] What's this person going to do?

[252] It feels like this new era where they're...

[253] More politicized?

[254] Yeah, they're more known, so it almost feels like they have to go by their party line.

[255] I don't know.

[256] What do you think of that?

[257] Let me answer in two ways.

[258] First of all, when the subject of televising the Supreme Court has come up as it has and the court said no. One of the justices just a few years ago said, I want to be able to go to an A &P and not be recognized.

[259] Now, my reaction was that that's a terrible reason.

[260] I mean, you know, he's one of the most powerful people in the country.

[261] You don't want the job.

[262] Don't take it, but don't tell me that you have to be anonymous.

[263] You want to be the most powerful, yeah, and have anonymity.

[264] I'm in favor of televising arguments in the court, but one of the arguments against it has been that lawyers are going to play up to the public.

[265] Right.

[266] That being televised, they will, in essence, misbehave.

[267] Become characters.

[268] Yes.

[269] You know, want to be recognized at the A &P.

[270] I think I heard you said previously, like, there was a fear that they would be actually kind of campaigning for future business.

[271] This would be their audition.

[272] You're right.

[273] I mean, that certainly would have been or is one of the risks of televising.

[274] I still think it's a good idea.

[275] I mean, and having watched a lot of arguments and read about a lot of others, I really don't think that the lawyers who get to argue in the Supreme Court are going to risk their own reputations with the court, let alone the chances of their clients to succeed in the courts.

[276] But that's one of the recurrent issues, how much should be public, and the court tries to make available to the public.

[277] It writes opinion.

[278] A lot of courts around the world, judges don't write lengthy opinion.

[279] they just decide.

[280] Okay, I want to ask, does the First Amendment come with some downside that we all just have to accept?

[281] What I would equate it to is, like, we have a fundamental principle here that we believe you're innocent until proven guilty, and we all accept that as Americans.

[282] And with it, we realize many guilty people will go free, but we're willing to take that price to prevent a single innocent man being put in prison.

[283] Similarly, this is what I've always applauded, plotted the ACLU about, and I hate that they've changed courses, which is they got to defend the KKK just as much they got to offend the Black Panthers.

[284] I feel like I'm hearing people in public demand it to be perfect when that's not possible.

[285] Are we not accepting some of the downside of this incredible right?

[286] You're right.

[287] Some of the most important rights inherently bring with a downside.

[288] A trial by jury means sometimes the jury's not going to be so smart.

[289] Yeah.

[290] Mm -hmm.

[291] or sometimes they're going to be persuaded to have sympathy or be biased and not have sympathy for someone before it.

[292] In the First Amendment area, I think we have to recognize sometimes speech does harm.

[293] Racist speech, anti -Semitic speech, other speech, the body politic wasn't indifferent to that.

[294] They were often persuaded by it and did bad things as a result of speech that was protected then and for the most part would even be protected.

[295] now.

[296] So it's true in every part of the Constitution.

[297] Jurors can fall asleep.

[298] Sure, sure.

[299] I'll tell you, as the lawyer, it is embarrassing when you're the one speaking.

[300] So what about hate speech?

[301] Where do we draw the line?

[302] My understanding is if it's kind of provable that it's inciting violence, then now we're in an area where maybe you don't have free speech.

[303] Our concern about the dangers of the suppression of speech are embedded in our constitutional law in the way that no other country, and I mean every democratic country, goes as far as we in protecting offensive and dangerous speech.

[304] There is a point in which speech is such an incitement so likely to have an effect of a riot occurring and certain other aspects required as a matter of law that even we say that's not protected.

[305] I do want you to make a distinction because this seems to be a common misunderstanding of people.

[306] Then I want to get into some that I think I'm on the other side of it with you and we'll have a little debate.

[307] You'll embarrass me. That's not allowed.

[308] It is.

[309] We're on my platform.

[310] This is what I was going to say.

[311] You hear all these people, they ban someone from Twitter, they go, no, we have free speech.

[312] And I just want someone who is well -versed, in constitutional law, just to explain to people the difference between that and the public domain, the government domain, and then the private.

[313] Tell us why you don't have a right or you do.

[314] Let's start with Twitter.

[315] Twitter has First Amendment rights.

[316] Twitter has the right to take or get rid of anyone it wants to in the same way that a newspaper does or a broadcaster does or you on this program.

[317] You don't have to invite someone who you don't want.

[318] It's not for the person that wants to speak to decide.

[319] That's part of the very basic territory of constitutional rights and of protecting constitutional rights.

[320] The effect of a lot of our constitutional provisions in protecting human rights is to risk other human rights.

[321] You let someone go because a jury made a mistake and she commits another crime.

[322] That's part of the deal.

[323] The alternative is what?

[324] Don't let him go even though you can't prove that he did something wrong.

[325] Right.

[326] I like that you made it a her who was guilty and got off in a hymn that was innocently incarcerated.

[327] I appreciate that.

[328] I noticed it and I appreciate it.

[329] But this is the argument I hear.

[330] You are allowed to go in your town square and say whatever you want.

[331] You're not allowed to go on Twitter because you don't own Twitter.

[332] And it's not a public space and it's not controlled by the government.

[333] It's a private company.

[334] You don't have any secured rights in my living room.

[335] That's not how it works.

[336] You do in a government space, in a town square, whatever.

[337] Now, there are people that are arguing, and I think they're trying to make this point, that in effect and in practice, Twitter, Facebook, Instagram, all of it is now the public square.

[338] They try to paint it as a utility almost, and that therefore they should be able to say whatever they want.

[339] How do you respond to that?

[340] It's not a dumb argument, not a foolish argument for people to say Twitter is that important.

[341] Facebook is that important that when you either keep me off or don't let me say what I want to say, that it has real impact.

[342] I mean, it's not an exaggerated claim, but we have to make choices as a people.

[343] And I think what the Supreme Court would say, because I haven't had a Twitter -like case, is the fact that there's a new means of communication, which is terribly important, and that not being on it is harmful, certainly psychically, and maybe worse than that, that we're going to stick with the notion that the First Amendment means what we've said it means through the years.

[344] Benjamin Franklin said whoever owns a newspaper can decide what to print in it.

[345] Now, some other democratic countries might come out differently on this issue precisely for the reason that you say because Facebook, Twitter, and the like are so important.

[346] But my answer would be that makes it all the more.

[347] important that we don't let the government get involved and who's on and who's off.

[348] Exactly.

[349] You start trying to imagine how this would be policed.

[350] And what would happen, I say this apolitically, when a political leader, President Trump, when he was objecting to a lot of what was said about him, in the strongest terms, the press, the enemy, the people, all that.

[351] He's allowed to say it.

[352] They're allowed to say what they want about him.

[353] And believe me, it's not that way every place in the world.

[354] Okay, here's where we're going to disagree, I think, which is this is going to be great.

[355] Exciting.

[356] I'm sure you're familiar with the Hulk Hogan sex tape got out.

[357] Gawker published it.

[358] Yeah.

[359] There was a huge court case.

[360] It's worth mentioning that Peter Thiel funded the Hulk Hogan defense of him.

[361] But, okay, and again, there's where I get into my own unique, egocentric point of view, which is, If I understand what the freedom of the press is for, which is to challenge the government and to regulate the government, keep it from being totalitarian, and you can extend that to powerful people.

[362] There's a million we could label Bill Gates, all these people that have a lopsided influence over our country, that you should have access to them and you should be able to out their secrets.

[363] Do we think Hulk Hogan having sex with somebody in a room, not knowing he's being filmed, is that the right of the press?

[364] Like, I don't know what purpose that serves to protect us.

[365] I agree with the fact that he won that personally.

[366] I thought, if I go to your house and you've wired up your bathroom, it's not news to put me going to the bathroom out illegally.

[367] What do you think of that and where do we draw the line?

[368] What I mind most about the case is that the effect of it is to drive a magazine out of business.

[369] And that's what happened.

[370] I mean, Hulk Hogan is not exactly the most attractive candidate saying I want privacy.

[371] But there is, and there will.

[372] was a strong privacy argument mounted in general and specifically about having sex.

[373] You know, it wasn't on the street.

[374] It presumed privacy.

[375] Yeah, I mean, there were some facts in that case which allowed sort of you've asked for it of argument, putting aside the special facts of that case.

[376] What the case winds up really raising for us is how do we reconcile claims of privacy and a more generalized but critically important.

[377] right to publish.

[378] I mean, the Bill of Rights doesn't talk about privacy.

[379] Is search and seizure not in there?

[380] But that's going to someone's house, you know, trying to find maybe fingerprints.

[381] Okay.

[382] Is search and seizure or taking something out of the house?

[383] But this is a privacy claim, which I would say did not exist at the time of the beginning of the country.

[384] Privacy became a real claim in America the end of the 19th century.

[385] And so we still have cases all the time in which the question is, which interest should be dominant.

[386] What principle do we serve?

[387] Look, that's one of the reasons we have courts.

[388] Do you think the right verdict was reached in that case?

[389] I'm going to pass.

[390] You're allowed to pass.

[391] No, I shouldn't be here if I'm not ready to answer.

[392] Will you accept an answer of, I really get it.

[393] I got you.

[394] I like that.

[395] Here's my next one that I have children.

[396] When they were born, there were paparazzi living in my front yard.

[397] There were movements to try to get some kind of law passed.

[398] I thought, well, this will never stand up for First Amendment reasons.

[399] I took a different route, which is just appealing to publisher's sense of morality, that kind of work.

[400] But I will say, it's back to this thing.

[401] Is there news there?

[402] Is a celebrity's child news?

[403] Should some organization have the right to be looking at them on a playground playing?

[404] Can they even make the argument that this even resembles the goal of the First Amendment?

[405] It certainly is not what the framers had in mind.

[406] Yeah, that's a good point.

[407] There weren't photographs.

[408] No one has any right to walk into your home or to be on your lawn.

[409] Those are easy cases that you should win.

[410] And yes, there are privacy interests, long -range cameras that take pictures into people's apartment from way away where they are allowed to stand.

[411] There are, I would say, an increasing amount of cases saying in that situation, too.

[412] There is a privacy right.

[413] When you talk about children of famous people, when the children, are in public places.

[414] School?

[415] Well, walking out of school, say.

[416] They wouldn't be allowed in school.

[417] Playground of school?

[418] I think of one case right now where a community in California passed a law, essentially no photographs of kids without their parents in this park, not the Supreme Court.

[419] It didn't go there.

[420] But the highest court below said, the public park is a public park.

[421] Anyone's allowed in it?

[422] Anyone's allowed to take pictures in it?

[423] Period.

[424] And they based it on the First Amendment.

[425] These are hard cases because I don't have to say why a parent might mind.

[426] Well, I guess I'm trying to drill into the Fourth Estate's interest, the public good.

[427] If I'm with my kids, I guess you make an argument, but my child removed from me in a playground, I could accept that you say, well, this is the collateral damage of something that's really important.

[428] Fortunately, I've never had to say that in court.

[429] I'm just as glad for you to threaten to bring a lawsuit, even though I think you'll probably lose.

[430] if you bring it, because it might scare some of these people away who never should have been there.

[431] But in terms of what the law is, I do think we really have to be careful about limiting topics of the press.

[432] It's so easily dangerous for those children once they become recognizable.

[433] It gets very quickly not just the rights of being able to sell their pictures, but like their right to safety.

[434] England now, if you're a minor and you don't have the express consent, and you haven't posted a bison.

[435] million pictures of your children on Facebook and already demonstrated that you're outing their anonymity.

[436] You can't in England.

[437] So it happens.

[438] There was groups trying to get together something to make a law.

[439] I'm not naive.

[440] I'm like, I know this will be, again, a collateral outcome of something ultimately I believe in protecting.

[441] It's a little, I think, askewed in this case, that it would be news.

[442] My favorite case that this makes me think of is when a law was passed in California designed to protect actors by limiting information about their age.

[443] Oh, my God.

[444] Not at all, to my surprise, it was held unconstitutional.

[445] Well, you got us on that one.

[446] Yeah, that one's embarrassing.

[447] Stay tuned for more armchair expert, if you dare.

[448] We've all been there.

[449] Turning to the internet to self -diagnose our inexplicable pains, debilitating body aches, sudden fevers, and strange rashes.

[450] Though our minds tend to spiral to worst -case scenarios, it's usually nothing, but for an unlucky few, these unsuspecting symptoms can start the clock ticking on a terrifying medical mystery.

[451] Like the unexplainable death of a retired firefighter, whose body was found at home by his son, except it looked like he had been cremated, or the time when an entire town started jumping from buildings and seeing tigers on their ceilings.

[452] Hey listeners, it's Mr. Ballin here, and I'm here to tell you about my podcast.

[453] It's called Mr. Ballin's Medical Mysteries.

[454] Each terrifying true story will be sure to keep you up at night.

[455] Follow Mr. Ballin's Medical Mysteries wherever you get your podcasts.

[456] Prime members can listen early and ad -free on Amazon Music.

[457] What's up, guys?

[458] This is your girl Kiki, and my podcast is back with a new season, and let me tell you, it's too good.

[459] And I'm diving into the brains of entertainment's best and brightest, okay?

[460] Every episode, I bring on a friend and have a real conversation.

[461] And I don't mean just friends.

[462] I mean the likes of Amy Poehler, Kell Mitchell, Vivica Fox.

[463] The list goes on.

[464] So follow, watch, and listen to Baby.

[465] This is Kiki Palmer on the Wondery app or wherever you get your podcast.

[466] I want your opinion on Joe Rogan.

[467] This is a great point to symbolize this broader conversation of like who can step in, when should they censorship virtually.

[468] Keep in mind we're exclusive to Spotify.

[469] Yeah, yeah, disclosure.

[470] I can make it more specific.

[471] So claims of a scientific nature, that was the kind of attack on it.

[472] Well, these are scientific claims.

[473] Now, how do we distinguish between a person in the town square saying the vaccine will kill everyone?

[474] No one cares.

[475] Now, an entertainer, now that's probably another category.

[476] And then media.

[477] How are we siloing these things?

[478] And how did the rights differ within those silos?

[479] Well, first, in this area, which is so relevant today and has been for the last two years of sort of public, medical advice and the like.

[480] The legal answer in general is you can say what you want.

[481] There's very broad protection, even in this area of extreme danger.

[482] When you're talking about medicine or the like, sometimes they're not only wrong.

[483] They're killing people.

[484] Now, within over backwards to protect free speech and to keep the government, the government includes the courts too, from being in a position of deciding truth or falsity on issues like that.

[485] And we can look at history why that's so important.

[486] When microscopic pathogens were proposed as a scientific thought at the time that was hearsay, that was threatening.

[487] So had we silence that, which at the time seemed insane.

[488] And doctors lost their licenses, and some doctors went to jail for, in good faith, creating what turned out to be disease ending.

[489] Right.

[490] Endobiotics and penicillin.

[491] We have to guess.

[492] that the medical claim could be the next one of those.

[493] We have to act as if.

[494] Right.

[495] We don't have to believe that that crank over there with these crazy views who's misleading his listeners into doing something terribly harmful.

[496] Our decision has been we as a society, we can't go there, and we shouldn't go there.

[497] Well, and also because it's not like Joe Rogan's show is the only source of information we have, in this country.

[498] It's not state media.

[499] Exactly.

[500] So you can just choose not to listen.

[501] Yeah, I don't know why you need it removed.

[502] Well, I have differing views from his on the pandemic.

[503] But if your claim is that you can't see anything unscientific without a banner, then we must immediately go through every religious podcast.

[504] We can't allow anyone to say that there's 5 ,000, 7 ,000 years old.

[505] We can't allow for a geocentric theory of the union.

[506] Yeah, it gets tricky, though, because ours is obviously entertainment.

[507] I think Joe Rogan would consider his entertainment as well.

[508] But then, like, what about the daily?

[509] Like, I don't consider that entertainment.

[510] I consider that news.

[511] Yeah, but let me be clear, entertainment's protected too by the First Amendment.

[512] That was not always so clear.

[513] American movies used to be censored.

[514] And the movie industry wisely protected itself by having ratings.

[515] One impact of which was we didn't get legislation.

[516] The legislation probably would have been held to be unconstitutional.

[517] Certainly now it would be.

[518] I think that in that area, they served themselves well as well as serving society well.

[519] Yeah, they said if we don't self -regulate, they're going to step in.

[520] So let's do the MPP.

[521] I don't think M -P -V -V -A.

[522] M and a P in a bunch of A's.

[523] I think they were always right in saying that the public was served by having ratings Some of my civil libertarian friends don't agree with that, but I think that's simply providing more information.

[524] Okay, I want to ask you kind of a bigger global question, which is at the time of the Constitution, the most existential threat had been England.

[525] We had just been at war with them for eight years or however long it was.

[526] That was very fresh in our mind.

[527] You hate hypotheticals.

[528] I already heard it.

[529] Don't make a ruling based on something that's never happened.

[530] But with that said, do you think it's, possible would it be pertinent if at some point in our life we identified something that was actually a bigger threat, that we prioritize what is a threat to us.

[531] You can make the argument that right now the polarization of our country is almost rendering it ineffective.

[532] There's all kinds of just horrendous outcomes based on this polarization.

[533] If we were to recognize as a people that perhaps the government's not the biggest threat to us, but that we are the biggest threat to ourselves.

[534] Would it be smart to elevate something above our previous number one slot, which was the government?

[535] Could we say, you know what?

[536] Fuck, we know what social media did, guys.

[537] It literally has ruined us.

[538] We're going to vanish it.

[539] That's going to violate a lot of our initial rights, but we have a bigger threat on our doorstep.

[540] How does that statement make you feel?

[541] Are we allowed to prioritize or triage our problems and elevate something over our fear of the government?

[542] Generally, and certainly in the case that you pose, no, you're allowed to think it, of course, but thanks a lot, I know.

[543] I mean, social media has a lot to answer for, and I can understand, and like everyone, sometimes feel as if we'd be a lot better off back in the 20th century, but it provides so much information, it provides so much access to information for so many people that never had it before, that even if we put aside the First Amendment and just did what law school professionals would call an ad hoc balancing test, just deciding which is more important.

[544] I would argue we've been better served by having social media than not.

[545] But I would say at the same time that a good deal of the terrible divisiveness and the anger in this country has a lot to do with the impact of social media at its worst.

[546] This is ironic in a way, too, because not that many years ago, people who love the First Amendment would think if there was only some way that the masses could find a way to communicate and to learn information with no barriers.

[547] Don't have to belong to a club.

[548] You don't have to go someplace, and you don't have to have money.

[549] And it felt as if the more we went down the road of more, call it internet -affected behavior, the more democratic it was.

[550] More people have more access to more information than in the history of the world.

[551] It's true and it's not.

[552] Let's really quick just point out.

[553] It'd be one thing if you had offered the library to the world, but it'd be another thing if to enter the library you were assigned a librarian that curated everything you read, now we're in a different realm.

[554] So forget social media.

[555] Let's just talk about algorithms that point you in the direction.

[556] It's very tricky.

[557] It's not just the breadth of human knowledge.

[558] It's the curated breath of human.

[559] In theory, it was.

[560] Yes, in theory.

[561] And you're right.

[562] I will make one comment about the library.

[563] I've always been fascinated by the fact that when libraries first were created, there was objection to it on the ground, that the masses, those people that I was just talking about who don't have money and aren't.

[564] title to learn and find out and all that.

[565] But the argument against libraries, they were too dangerous.

[566] You're putting in one place all this information that, in effect, will have more revolutions.

[567] The great fear no one talks about of all the founding fathers, but there was a lot of people with good reason that thought, if we have an actual democracy, what is going to prevent 51 % of the country deciding to take all the wealth from the people who have it?

[568] We can't have a country that just steals from the people that are successful.

[569] This fundamental fear, I think, is what burbles up in the notion of having a library available to everyone.

[570] You put it more directly than I think I ever have, but that fear is the sort of fear which results in us having two senators from each state, no matter how small, and a large number of incontrovertibly undemocratic aspects to our society.

[571] Yeah, these are all little fail saves.

[572] Okay, now on your show, speaking freely with you, Floyd Abrams, Dr. Floyd Abrams.

[573] No. No, don't you have a doctorate degree from Yale?

[574] No, I went to Yale Law School and graduated and all that.

[575] If I were in Germany, I would be Dr. Floyd Abrams because they give a doctorate to people who go to graduate school.

[576] Then let me rephrase, hair doctor, Floyd Abrams, V .A. Wait, though.

[577] Isn't a JD Juris Doctorate?

[578] Yes.

[579] When I got it, it was a few years ago, it was still an LLB.

[580] Oh.

[581] LLB.

[582] Yes, proprietors of great soft.

[583] But it became just what you said it's become.

[584] And yes, a doctor of laws, but no one has ever mistaken law school for getting a Ph .D. Yeah.

[585] Okay, good.

[586] Then I hadn't been disrespecting you.

[587] But the point is, Sir Floyd Abrams, on speaking freely with you, I imagine you'll be talking with a lot of people under the lens of First Amendment.

[588] Is that fair to say?

[589] You'll generally, it'll be working through your specialty, which is First Amendment?

[590] Yeah.

[591] We taped some shows today.

[592] We talked about a lot of current issues, of course.

[593] But one thing we talked about, I found specially interesting because we're talking about it again, which tells you something, is the impact of social media on the country.

[594] While the First Amendment doesn't really arise because it's so obvious, That social media is protected.

[595] No one is really saying, let's pass a law, getting rid of it.

[596] They are trying to figure out how to put guardrails in now.

[597] One of the biggest safety nets of it, as I understand it, is there's a publishing, I forget the name of the actual law.

[598] Section 230 of what's known as the Communications Decency Act, in an effort to get the Internet going, to get more on the Internet for more people, basically has provided that Facebook is not responsible for what you say on Facebook.

[599] Right.

[600] You can't sue Facebook because your uncle Darrell said something racist.

[601] But if the New York Times put that in there, you could.

[602] Or if you said something today in this exchange about someone which is libelous, sure, you can be sued.

[603] But if this conversation were on Facebook, we could be sued for anything we say.

[604] Hopefully, Monica, she doesn't have children, we do.

[605] Well, yet.

[606] But Facebook is immune to that sort of lawsuit.

[607] One of the few things that the candidates for president seem to agree on, both of them said, we don't like this section 230.

[608] It gives too much power to the Facebooks.

[609] Too much authority to the platforms.

[610] And I wouldn't surprise me if we could put this country together again someday, if there could be agreement on something.

[611] Yeah, to me it feels like that's the area they could hone in on something that would stand up.

[612] It is.

[613] You kind of hinted at it at the beginning, but I'm kind of fascinated with this case you're waiting to hear whether or not it's going to proceed, which is you are suing, we would say, yeah, are you suing the SEC?

[614] And this is really fascinating, Monica.

[615] You'll like this.

[616] So when you settle a case with the SEC, you sign the settlement, and in doing so, it's basically like an NDA, or it's a gag order in this case, which you can't ever publicly for a lifetime.

[617] Wow.

[618] Question the validity of their facts, the validity of their case.

[619] That's exactly right.

[620] I read your paper, boss.

[621] I was this case lost below.

[622] Well, what did the courts say that requires an appeal now?

[623] They said, well, you agreed to it.

[624] Oh, you agreed to the settlement.

[625] You didn't have to settle.

[626] Now, I wish you were on the court.

[627] Hey, I almost threw up when you said that.

[628] That's why they call it a gag order.

[629] Nice.

[630] Too good.

[631] The things that strike me immediately are just like, A, there's no example of this.

[632] If you reach a settlement with the IRS, you can talk about it.

[633] If you reach a settlement with the DOJ, you can talk about it.

[634] The CFTC is the only other government entity that has the same policy.

[635] but the Department of Justice doesn't, for example.

[636] I mean, if the Department of Justice brings a lawsuit and you settle it with them, they don't demand that you never criticize them.

[637] That's really what these amount to is that you can't show up later on this program and say, what an outrage.

[638] I settled with the SEC, but I didn't do it.

[639] I can easily paint a picture why this is absolutely essential, which is you are a person.

[640] The entire weight of the government is brought to on you.

[641] They paint a picture for you that is very convincing that you're going to spend the rest of your life in prison or you're going to admit to X, Y, or Z, and you look at your life and you say, you know what, I didn't do this, but the lever is so enormous against me that I have no choice but to do this.

[642] Now, I need to be able to tell people that because if we see a pattern arise where they're constantly going after people for, you know, capital offense for something, we need to know that.

[643] We need to know what they're bargaining with, what settlements are coming about, right?

[644] Yes, absolutely right.

[645] These agreements are ones in which the individual who's been accused doesn't have to admit or deny.

[646] But one of the elements of it is just what we've been talking about.

[647] You can never say anything to the effect that the SEC's complaint was wrong.

[648] What sort of got me really interested ideologically about this is that if you do some terrible crime and you go to jail the law is clear you can write a book if you want you can say I didn't do it OJ had the book literally called I didn't do it or no I think if I had even worse yeah you can go the other way you can get acquitted and then admit to it of course if you're acquitted you can say whatever you want and of course if you're found guilty, you can say whatever you want.

[649] The only time you can't say what you want is if you settle.

[650] And that's what is at issue.

[651] Now, on the personal front is that if I settle some lawsuit with somebody, you're looking at two human beings that each have rights.

[652] The government should never have rights, in my opinion, to not have their side of the street exposed.

[653] That's not something that should ever be protected.

[654] How would you like to be a judge?

[655] Sign me up.

[656] Where's your daughter, at New York.

[657] She's a judge in New York.

[658] And the Southern District of New York.

[659] So put me in there, so when you stop by to see her.

[660] You guys can have coffee.

[661] Yeah, we'll make it a one -stop shot for you.

[662] Really, what you said is the quintessential issue in this case.

[663] What we're really talking about here is that you can't criticize the government.

[664] They shan't ever be protected from that, in my opinion.

[665] And that's why I'm hopeful that the court will agree to hear the case.

[666] And if it does, that it'll go the right way.

[667] Okay, my last question for you, and this comes at some risk of offending you, but here we go.

[668] How the fuck do you have your stamina?

[669] Like, what is the health tip you could give to me?

[670] You're 85 and you have a podcast.

[671] You're trying cases in front of the Supreme Court.

[672] How do you stay so engaged?

[673] I'm doing a book about this.

[674] No, tell me you're selling pills.

[675] That would be the ultimate answer.

[676] Look, I've been very lucky to have been in a position in which my career could have been around and about something that is both so interesting and so important and that I could make a really good living doing it too.

[677] Double whammy.

[678] Gratitude.

[679] This didn't have to happen that way.

[680] I was very fortunate.

[681] I was able to take advantage of situations that arose.

[682] I can't say that, and I really don't even think, that if I weren't in this area, that if I didn't have the pleasure and satisfaction of being in this area, that I wouldn't be able to do the things I'm doing.

[683] I'm teaching at the same time.

[684] Yeah, it's so impressive.

[685] It's embarrassing for us, to be honest.

[686] For all of us.

[687] We're ready to retire.

[688] I'm not even 35.

[689] Yeah, it's really the passion, because a lot of people have a charmed life.

[690] as you do.

[691] And a lot of those people with Charmed Lives go, and I've experienced it, and now I'm on to the next.

[692] So there's a passion that you're keeping it alive.

[693] In my defense, I did have to do it well.

[694] Yes, yes, yes, yes, of course.

[695] Or you hate your wife.

[696] You could hate your wife, and you just want to get out of that house as much as humanly possible.

[697] But to be very clear, before we adjourned today, I don't.

[698] That's why it's a safe joke.

[699] You've been married forever.

[700] But good to clarify.

[701] I've been married.

[702] since 1963.

[703] Oh, baby.

[704] That's 59 years.

[705] You could say.

[706] Congratulations.

[707] That's incredible.

[708] Thank you.

[709] And you've got two really successful children.

[710] I thought for a while that in terms of my children, what stories do you think I told my children when they were going to sleep?

[711] When other children were being told fairy tales.

[712] I told them about cases.

[713] I remember so clearly talking about case having a discussion with my children when they were pretty young about cases.

[714] I mean, I remember bringing up in law school in a contracts course, the very first case was a 19th century case about a school teacher who worked in Kentucky and in the winter it was very cold and they didn't have enough coal to make the school warm.

[715] So she bought it and put the coal in and put a bill in to the state to pay her.

[716] And the first case we learned in law school was, was there a contract or not?

[717] Does the state owe the money or not?

[718] That can go either way.

[719] That's why it's the first case in the book.

[720] Well, my children talked and talked and talked.

[721] I mean, that was really interesting.

[722] Yes.

[723] How fun for them.

[724] I know.

[725] I'm jealous of them.

[726] Me too.

[727] It's almost like you're like a philosophy parent, which is like you're doing thought experiments, but they're actual.

[728] They're not even experienced.

[729] because none of these things would end up in a courtroom if they were black and white.

[730] That's why they're there.

[731] It's like the juiciest stuff in the world is the nuance, right?

[732] One of my favorites, I'll say it quickly, about my children is my daughter.

[733] She wasn't more than eight or nine.

[734] She asked me, what cases are you working on?

[735] She asked me, so I would stay in her room.

[736] Yeah, yeah, yeah.

[737] Well, what do you say?

[738] I said, well, we say the First Amendment means this.

[739] She said, well, what do they say?

[740] I said, well, they say the First Amendment means that.

[741] And my dear daughter said, hasn't anybody read it?

[742] That's great.

[743] Oh, man. Well, this has been such a pleasure.

[744] I hope everyone listens to your joyful, overly intelligent, tremendous view of all this on speaking freely with Floyd Abrams.

[745] I hope everyone checks that out.

[746] It's been so nice to talk to you.

[747] I feel very, very flattered.

[748] honored.

[749] I'm so glad to meet you both.

[750] Thank you very much.

[751] All right.

[752] Our pleasure.

[753] Be well.

[754] Stay tuned for more armchair expert if you dare.

[755] And now my favorite part of the show, the fact check with my soulmate Monica Padman.

[756] Okay, Floyd Abrams.

[757] Wow, a lot just happened.

[758] We had like a mini pause, you and I to talk about another gas.

[759] And then my blood pressure shot up.

[760] Oh, no. And then I went scrambling to find an email because I had written a personal note to this person.

[761] And then it goes unable to find it as well quickly.

[762] And I'm panicked.

[763] And then it was a little frustrating for you, too, that I needed to find this.

[764] No. Oh, good.

[765] Okay.

[766] Let's talk about Floyd Abrams.

[767] What a sweetie pie.

[768] We love him.

[769] Also, I can't believe he's still working at that capacity.

[770] I know.

[771] I was just feeling last weekend in Tennessee.

[772] I was like, you know, sometimes, well, I don't know.

[773] Do you?

[774] Sometimes you have a hard time thinking?

[775] Oh, yeah, all the time.

[776] Yeah, we're like, I'm trying to remember the simplest damn thing.

[777] Exactly.

[778] We couldn't remember Warren Buffett's name just a mere six minutes ago.

[779] And ding, ding, ding, that was one of the people in Nashville, I couldn't think.

[780] Oh, wow.

[781] And I was like, this brain of mine is in a nosedive.

[782] I know, same.

[783] Yeah, and I'm 47.

[784] This is a ding, ding, ding, ding, and a soul cells.

[785] Because I had that thought last night because I was like, I feel like my brain is not working the way it should.

[786] And then I wondered if it's because I have toxic shock syndrome.

[787] No, no, no. Your flies are arriving today.

[788] They arrived.

[789] Okay, but...

[790] But from last month...

[791] Oh, no. What if I left a tampon in?

[792] Oh, my God.

[793] I'm sure some girls can relate to this.

[794] Like, it's scary.

[795] You never know if you've accidentally left a tampon in.

[796] Legit fear.

[797] Yeah.

[798] Well, we have a friend whose aunt died of toxic shock syndrome.

[799] We do?

[800] Mm -hmm.

[801] And she was 21, our 21st birthday.

[802] birthday.

[803] Oh my God.

[804] Yeah, for dudes out there, every woman I have to imagine knows about toxic shots.

[805] But for dudes I don't know, the threat they say at least is that if you leave a tampon too long, you could get toxic shock syndrome.

[806] Yeah, it's not they say.

[807] It's real.

[808] It can just like will poison you.

[809] Right.

[810] If you leave a tampon in for too long.

[811] But, and you think like I would never You're right.

[812] That wasn't the right ways.

[813] But as again, my brain is in decline.

[814] Sure, that's fine.

[815] Well, we can let that go.

[816] You think like, who?

[817] Who would leave it in for too long?

[818] Right.

[819] But it's way more easy to do than you think because you have to replace it, you know, every four, six hours or whatever.

[820] Every 46 hours.

[821] No, don't do that.

[822] I'll give you toxic stuff.

[823] What I've heard is more the problem is like you think you've taken it out.

[824] That's right.

[825] And then you shove another one in there and then you bury that first one.

[826] Exactly.

[827] Deep, deep up in there.

[828] And sometimes a string goes up all the way.

[829] You don't see it anymore.

[830] And you think, oh.

[831] Oh, I must have taken it out.

[832] There's no string.

[833] For real, it's scary.

[834] Sure.

[835] How long is too long?

[836] Well, okay, so in this case of the friend's family member who died, it was only in for like...

[837] 30 minutes?

[838] No. Don't make light of it.

[839] I know.

[840] I didn't mean to, but I had to.

[841] This person, it was their 21st birthday.

[842] They went out and she had a tampon in.

[843] And then the next morning she didn't feel good, but thought like...

[844] She was hung over or something, yeah.

[845] she was hung over and then by that night she like went to the hospital and she died oh my lord so that is only 24 hours so it can depend i think on the box it says to not leave them in for longer than like four to six hours yeah the FDA says change it after 48 hours yeah 48 hours 4 to 8 4 to 8 i'm so sorry you guys keep saying 46 and 48 but it's 426 sometimes it's hard to work with men because they don't understand the dangers no i do but I make fun of every disease, male or female.

[846] My good friend was on here seeing he lost his sponsor.

[847] I know.

[848] I mean, you know, that's what I do.

[849] I know.

[850] Okay.

[851] But I'm just saying that I'm nervous that I left one in last month.

[852] Oh, well, you'd be dead by now.

[853] I think so, right?

[854] Yeah, for sure.

[855] Okay, that was my...

[856] Yeah, you're really out on a limb with this theory.

[857] Well, I was having some issues.

[858] Right.

[859] So then I wondered, wait, maybe that's a problem.

[860] part of the stew here the period stew, the fly stew.

[861] Oh, wow.

[862] Anyway, I think it'll probably just go to the doctor next week and just get a little check.

[863] Okay, great.

[864] Why not?

[865] It says it develops.

[866] Jesus Christ, you have touched your throat syndrome?

[867] It says it develops in three to five days.

[868] Okay.

[869] So you'd be long ago.

[870] 20 days ago.

[871] I think I would This is so disgusting, but I think I would probably smell it.

[872] Yeah, of course.

[873] That's where you're grateful, you know, to have a distinct...

[874] Kind of like, listen, people don't know this about propane.

[875] Maybe they do, maybe they don't.

[876] We've all smelled propane.

[877] It's very distinct smell.

[878] Yeah.

[879] It doesn't smell in real life.

[880] They add the odor.

[881] They add the odor so you'll know if there's a propane week.

[882] That's sulfury smell, that sweet, sweet, sulfury smell.

[883] So that's an example of when a stank smell is helpful and safe.

[884] That's right.

[885] And so, yeah, it would be good that you'd get some.

[886] Oterous qualities.

[887] See, here we go.

[888] Unsteep decline.

[889] You get some aromas.

[890] Guestatory warning Oh wow You're going for too high bar That's what I do But normally I can just do it Now it's like three You're gonna have to edit out my thinking now All the time Now I keep it in Now it's a thing Maybe if you extend it It's not even gooseatory That's taste Olfactory Oh factory Yes Oh man It's over It's been a great ride I don't want to talk about periods anymore When it's Floyd's episode I know Although he was happy to talk about sex Yeah he had a good sense of humor He did Yeah it was the case I brought Oh, Hulk Hogan.

[891] Yeah.

[892] Oh, my gosh.

[893] I'm going to read something to you.

[894] Okay.

[895] For people who don't know, this is a sidebar about the Hulk Hogan sex take.

[896] Oh, okay.

[897] You and I've talked about it a ton of times because I have a very specific fascination with that sex tape.

[898] Yeah, because you feel like it could have been you.

[899] No, no, no, no, no. That's not at all what I think.

[900] I can't imagine finding myself making love to Bubba the Love Sponger's life.

[901] No, I mean, you could find yourself in a predicament where a privacy.

[902] Yeah.

[903] Yeah, because you're a notable person.

[904] That's fair.

[905] But in this case, I suppose, you know, Bubba the Love Sponge has a slightly different version of this.

[906] I'm inclined to believe Hulk Hogan.

[907] But Bubba the Love Sponge had a Lucy Goosey scenario with his wife.

[908] People had sex with his wife.

[909] He often offered for people to have sex with his wife.

[910] And he had been at a dinner party at Bubba the Love Spong's home.

[911] They were friends.

[912] And he said, you want to have sex with my wife?

[913] The Hulkster took him up on.

[914] He said, cool, there's all in the video.

[915] Oh, great, I'm going to be in my office.

[916] I'm going to find it because I'm going to read it to you because it's just really, it's, it's what I'm always pointing out, but I don't do a good job of pointing it out.

[917] Things you didn't know about the Hulk Hogan sex tape.

[918] Okay, so unbeknownst to the Hulkster, Bubba the Love Sponge was recording it.

[919] The tape gets out.

[920] Gawker publishes it.

[921] He sues Gawker.

[922] Now, I'm on the other side of everyone, which just came out in the interview for the fact that he's allowed to have sex without, that's not public knowledge.

[923] Yeah, yeah, yeah.

[924] So he won that case.

[925] Anyways, the reason I love that sex tape is it's the most human thing you could ever see.

[926] Like you have in your mind, both people have in their mind, like what's going to be like to have sex with Bubba's wife?

[927] Bubba's wife's thinking about Hulk Hogan, this legendary six -foot, eight, 320 -pound, you know, Hulkster.

[928] Sure.

[929] But the reality of it is, the sex is over pretty quickly.

[930] Sure.

[931] And now we're into real life.

[932] Are they chatting?

[933] Yes.

[934] They chat?

[935] It's so much chatting.

[936] And listen to this.

[937] So this is number seven.

[938] Number seven.

[939] Hogan felt fat.

[940] Hogan's first words after getting out of bed, a disgusted, fuck, I just ate too.

[941] I felt like a pig.

[942] Apparently he ate too much shashimi.

[943] And he doesn't stop harping on it either.

[944] I can't believe I just ate like a pig 10 minutes ago, he complains, shaking his head.

[945] I feel like I just got off a fucking roller coaster.

[946] I'm out of breath.

[947] Oh, my God.

[948] So to me, this is where the rubber meets the road in a fantasy.

[949] It's like he ate too much.

[950] He's embarrassed.

[951] His stomach is so distended in that sex tape.

[952] And he's uncomfortable.

[953] And he is.

[954] He's breath.

[955] He's out of breath.

[956] And he says, I feel like I just got off a roller coaster.

[957] Fuck, I'm a pig.

[958] Look at me. I fucking got to stop eating.

[959] Oh, boy.

[960] It's so human.

[961] It's so human.

[962] I couldn't get enough of that part of the tape.

[963] I don't even think I watched any of the fucking.

[964] It was just like once I saw the Hulkster was uncomfortable with how much he had eaten and disappointed himself for overeating once again.

[965] I could just relate to that scenario.

[966] Do you think if that hadn't been a part of it, though, he would have cared that the sex tape was released?

[967] That's probably why he didn't like it because it was kind of embarrassing.

[968] Fuck, maybe.

[969] It's hard to say because he was married at the time.

[970] And to me, like, again, I have no insight information on this.

[971] But let's just say this whole scenario happened to me. I had sex with my buddy's wife and then it got out and I had to tell my wife.

[972] Yeah.

[973] And I would say, honey, it was not, I mean, Just believe me when I say it was regrettable and there was nothing great about it and it was a mistake.

[974] And then that tape comes out and anyone going, yeah, this isn't in the spank bank, this whole situation.

[975] I don't like this because there's a woman involved.

[976] Like no one's bringing up this woman.

[977] Everyone's like inviting the wife to have sex with other people.

[978] What does she think about anything?

[979] No, no, no. The woman wants to have sex.

[980] Are you sure?

[981] Yes, this is, yeah.

[982] A thousand percent.

[983] This has been gone over into the ground on Howard Stern.

[984] And Howard's friends with him and has had the wife on.

[985] The wife wants to fuck.

[986] Yeah, I mean, but when it's presented as the husband is inviting people to have sex with the wife, it doesn't feel like.

[987] They're king.

[988] I mean, that's their kink.

[989] Again, I'm not judgment.

[990] I don't really care if that's what people get off on is seeing their wives get fucked by other dudes or vice versa their husband.

[991] But it shouldn't be he's inviting people.

[992] It should be she wants to have.

[993] have sex with other people and he gets off on seeing him.

[994] But even if someone's wife wants to have sex with you, you have to get the husband's permission so you don't ruin that friendship.

[995] They're friends.

[996] So unless Bubba says, dude, go ahead.

[997] She wants to and I don't care.

[998] That is the most crucial detail of the story.

[999] It's not that those two had sex and had an affair.

[1000] Right, right, right.

[1001] But I'm just saying, I think the phrasing is problematic that it sounds like he owns her.

[1002] No, that's not at all what I'm saying.

[1003] Okay.

[1004] Then great.

[1005] Not at all.

[1006] In the trial, that's not it.

[1007] That's not the scenario.

[1008] She likes to fuck dudes.

[1009] And he likes to watch her get fuck.

[1010] So they're like swinger -esque.

[1011] Yeah.

[1012] Which again, I don't have any thing negative to say about swingers.

[1013] That's fine.

[1014] So I'm imagining that when the hulkster got caught, the wife said, do you love her?

[1015] And in that case, this tape is helpful.

[1016] He'll go, no, hon. In fact, I was so full.

[1017] It's all I really thought about.

[1018] I felt like I'd been on a roller coaster.

[1019] I was, you know.

[1020] Yeah.

[1021] It's not romantic.

[1022] No. No, no, no, no. Okay, moving on.

[1023] Moving on.

[1024] What lawyer has argued the most in front of the Supreme Court?

[1025] According to the Internet, Carter G. Phillips.

[1026] Carter has argued 79 cases before the Supreme Court.

[1027] This is more than any other lawyer in private practice.

[1028] Oh, in private practice.

[1029] Carter G. Wow, when you look up Abrams, it says he's the...

[1030] Maybe it's First Amendment.

[1031] I don't know.

[1032] Right.

[1033] When were photographs invented?

[1034] Do you know?

[1035] Do you want to guess?

[1036] I do 1860.

[1037] 1826.

[1038] Ooh, 40 years off.

[1039] No, that's still pretty good.

[1040] Age.

[1041] OJ's book is called If I Did It.

[1042] If I Did It, Confessions of the Killer.

[1043] Oh, my, is that what it says, Confessions of the Killer?

[1044] Yeah.

[1045] And look, look, the cover is I did it in huge letters.

[1046] And there's a teeny tiny gift.

[1047] This is, I mean, wow.

[1048] Man, you know, fuck.

[1049] You're just going, you know what?

[1050] I have absolutely zero integrity and I don't give a shit.

[1051] Like whoever published that, whoever's idea that was, you just, you have, you're like, I don't give a fuck.

[1052] That's awful, God.

[1053] I know, people are scummy.

[1054] I know.

[1055] You're a scumbag if you were behind that.

[1056] Okay, so he got an LLB instead of a JD.

[1057] L .L. Bean.

[1058] Yeah, I got an LL bean.

[1059] LLB stands for the Lagoon Baccalaurius.

[1060] Oh, legume.

[1061] The Prize of beans, yeah.

[1062] Oh, my God, the bean.

[1063] LL Bean.

[1064] L .O. Bean.

[1065] That's all.

[1066] That's it?

[1067] That's all for Floyd.

[1068] He was so nice.

[1069] He was.

[1070] It was fascinating.

[1071] Cool.

[1072] I hear a little disruption in the room.

[1073] Yeah.

[1074] I imagine it's our tall.

[1075] is here.

[1076] David.

[1077] Can we tell you about some gossip, Monica and I had behind your back when we were at Disneyland?

[1078] Mm -hmm.

[1079] I love hearing gossip.

[1080] About yourself.

[1081] It's always great.

[1082] It was complimentary gossip.

[1083] I don't think you know how gossip works.

[1084] It's not going to be.

[1085] Well, it was gossip, and now it would no longer be gossip, because we were talking behind your back.

[1086] Literally, we were standing behind your back.

[1087] Okay.

[1088] I mean, it couldn't get more literal.

[1089] We were watching you walk, and we both concluded, you could have been anything in the world.

[1090] What?

[1091] Yeah, it's really fascinating.

[1092] These words came out of my mouth.

[1093] David could have been a fucking runway model.

[1094] Didn't I say that?

[1095] You did?

[1096] Yeah.

[1097] That's nice.

[1098] And then I said, but no, but he's not.

[1099] He's walking around and he's got these tall orange socks on and some fucking metal shirt on and all this stuff.

[1100] A cute Japanese bag.

[1101] Cute Japanese bag.

[1102] There's just, you know us, we love mixed messages.

[1103] And you're the ultimate mixed message.

[1104] It's just you pick up.

[1105] a lane, you could have picked any lane.

[1106] The sky was the limit for you.

[1107] Yeah, okay.

[1108] Sincerely.

[1109] No, that's such nice gossip.

[1110] It is.

[1111] It's compliment.

[1112] Yeah, that's really nice.

[1113] Thank you.

[1114] Yeah, yeah, yeah.

[1115] We were talking about how attractive you are and how smart you are.

[1116] And you could have gone in so many directions with it.

[1117] Do you think it's because you were literally sort of, you weren't looking at my face.

[1118] You're sort of you had half the information.

[1119] No. And if I turned to reveal myself, you were to go, oh.

[1120] No, it's actually the opposite.

[1121] Because from behind, you're carrying this little Japanese bag.

[1122] You got these orange socks on her, whatever loud color they were.

[1123] I can't actually remember the real color.

[1124] They were loud.

[1125] They were loud.

[1126] And from the back, just given the visual clues of the accoutrement, you don't know who this person is.

[1127] And then when you turn, you're shook by the...

[1128] Sharp features.

[1129] Sharp features, pronounced a strong jaw line, perfect amount of facial hair in the way it grows in.

[1130] Just very attractive.

[1131] Thank you.

[1132] This is so nice.

[1133] You shouldn't like him because he has very sharp features.

[1134] I don't apply that to men.

[1135] Oh, sure.

[1136] If you track the men I like, they don't match up with the women I like.

[1137] I see.

[1138] This is such nice things to hear.

[1139] I had such a nice day at Disney, and this is like a bonus.

[1140] This is like Disney Part 2.

[1141] How would you describe Brad Pitt's features, Monica?

[1142] A mix of round and sharp?

[1143] I think they're a mix.

[1144] Because his nose isn't sharp.

[1145] No, but his chin is strong.

[1146] Yeah, he's got a lot of angles A lot of jaw They're pretty sharp They have a little bit of roundness At the top here Well the eyes are round Okay, all eyes are round No, not all They vary You're right They vary but actually I would say On the scale He's aren't that round Though that picture Pull him up on your phone From all the way from over here I just got turned on He is handsome It's fucking crazy It's really awesome There's the reason he's a star I mean yeah He's not an accident Yeah, his nose is sharp and round It is Oh my God The lips are so full Look at the fuck He's got good hair as well Impossible though Because he's got blonde hair but it's fiat When your hair is long it looks like his Oh God bless you Well I could be slowly started really putting in it into transforming He's had long hair and he does look like Here I'm going to put Brad Pitt Dax Shepard It comes up What does it come That doesn't mean It's because I talk about him so much It's like me on Ellen But I'm gonna do images Slurping Oh look What is this?

[1147] Side by side Oh it's a side by side Over this distance I can't tell who is who I think this is how Facebook started It was just people comparing each other And then look what happened next Can we applaud you for your recent article that came out Thank you Do you know he blew the lid off of a sexual abuse I know I'm proud of you And everyone should be Yeah, it was a church doing not great.

[1148] And you didn't have to do that.

[1149] You could be wearing a Gucci belt in Paris, high on cocaine.

[1150] That was an option for you.

[1151] Oh, man, that sounds fun.

[1152] Yeah, for a while.

[1153] Can I still take that option?

[1154] You picked a really good route.

[1155] You did.

[1156] Thank you.

[1157] I am happy doing what I do.

[1158] Well, we got to get you into a side -by -side.

[1159] We're going to have to do that on our own.

[1160] It's not on here.

[1161] Yeah.

[1162] It hasn't come up.

[1163] Okay, who do we think he most, like, and I don't mean looks like as much as thematically.

[1164] Like who would play him?

[1165] Yeah, so for me, here's a couple names I'm going to throw at you.

[1166] And you've got to imagine all these people with their primes.

[1167] Josh Hartnett.

[1168] Oh, so handsome.

[1169] Right?

[1170] Johnny Depp.

[1171] Like, again, Prime Depp.

[1172] Fucking, what's eating Gilbert Grape?

[1173] Look up what's eating Gilbert Grape?

[1174] Deid man was a good one.

[1175] W -H -A -T.

[1176] Oh, gosh, Josh is nice.

[1177] He looks nice.

[1178] He's still so attractive.

[1179] What's he doing now?

[1180] Faculty.

[1181] Look up faculty.

[1182] F -A -C -C.

[1183] I remember this picture This was a very famous picture Of him drinking this milk Oh he loved milk Yeah and everyone knew it I actually I also love milk I drink so much dairy I get teas I'm because I drink I'll often just get a big thing of chocko milk Before a concert or something And I'll chug that down Before a concert You guys are soulmates You and Josh Hartnett Yeah Also your diet sucks And your body is I imagine if I just put you on like a fine diet, not even a hard one, you would be jacked like Brad Pitt and Fight Club.

[1184] You don't need to be jacked.

[1185] I'm not encouraging him to be jacked.

[1186] I'm saying he eats like a fucking eight -year -old boy.

[1187] Can I, okay, can I say something you're might you might be upset about?

[1188] Oh, please.

[1189] I hope you are.

[1190] I hope you hear it.

[1191] In a negative way?

[1192] In a positive way, which is what I meet.

[1193] Arm Cherry Direct posted a picture of you in, without a paddle, I think.

[1194] Oh, okay.

[1195] And you're like coming out of the water.

[1196] or something.

[1197] Oh, right.

[1198] I've just fallen off of a waterfall.

[1199] Yeah.

[1200] Your body looks like Nicholas Holt's body in that.

[1201] You guys used to have similar bodies.

[1202] Wow.

[1203] Do you hate that or like that?

[1204] Okay.

[1205] That's great.

[1206] Anyway, I just thought you might like that.

[1207] I don't, I do think you're big boy now and you don't look like that anymore.

[1208] I know, and you prefer the other.

[1209] No, I don't.

[1210] It's okay.

[1211] It's obvious.

[1212] It's all right.

[1213] Can you just take the compliment and not go there?

[1214] But let's be honest.

[1215] Let's just be honest.

[1216] We're in an honest face.

[1217] No. We're talking about...

[1218] I'm not saying that.

[1219] Okay.

[1220] You prefer the...

[1221] I like everything.

[1222] I think a lot of people do.

[1223] I like everything.

[1224] Listen, I think a lot of people do.

[1225] Let's get this out on the table right now.

[1226] I think a lot of people prefer me smaller.

[1227] I do.

[1228] I hear about it.

[1229] My mom loves you looking big.

[1230] Oh, she does?

[1231] She said, Dax looks so big.

[1232] But that doesn't mean she...

[1233] Oh, good.

[1234] Yeah.

[1235] Strong, good.

[1236] Yeah, I like you big.

[1237] You do?

[1238] Oh, thank you.

[1239] Thank you.

[1240] I hear from a lot of people.

[1241] people they don't like it.

[1242] And by the way, I don't know that it aesthetically is better or worse.

[1243] I'm not doing it for the aesthetics.

[1244] I know.

[1245] I'm doing it for this feeling it gives me and the control over changing my body, which I love.

[1246] I'm obsessed with.

[1247] The notion that you can pick how you look still fascinates me. And I don't even know that it'll stay this size.

[1248] You do like the aesthetic of your body.

[1249] You like the vascularity.

[1250] I love the vascularity.

[1251] I might have tipped, though.

[1252] There's one picture and I couldn't even post it because it's disgusting.

[1253] We were having a normal conversation with somebody, right?

[1254] And I'm like doing this and this is the picture Rob took.

[1255] And this vein.

[1256] Yeah, it's popping.

[1257] But that's, this was nothing compared to the photo.

[1258] It looked like the vein had left the body and now was external.

[1259] Wow.

[1260] And you didn't like it.

[1261] I loved it.

[1262] But I could recognize that it was disgusting and that it definitely tipped into gross.

[1263] I look for the bainty ones for you.

[1264] Oh, you do?

[1265] Yeah.

[1266] Well, I sent it to Charlie, the only person in the world I thought would enjoy it.

[1267] And he And he goes, oh my gosh, wow.

[1268] Yeah, exactly.

[1269] This is a little concerning.

[1270] He's like, it's prime.

[1271] That's why I don't like vascularity, because it reminds me of blood explosions.

[1272] Yeah, and I like it, because, you know, I love those muscular skeletons of anatomy.

[1273] Do you like those?

[1274] They're interesting to look at.

[1275] Yeah, the red, you see the red fibers, and you see the tendons.

[1276] That means a no. You can say no, David.

[1277] Yeah, I don't like it.

[1278] You don't.

[1279] In fact, they do not like it.

[1280] Thanks to teach me, Monica, how to communicate in this country.

[1281] I always think it's good to have skin Because you don't want to see too much Like most people don't want to see what's under the skin I don't know And I think a vein is a reminder for some people It's like, oh oh we're like biology And sine and meat and that's why I think You don't like it We're mortal We're mortal It's a reminder of mortal I like it because it's mechanical You know I love mechanical things So it's like if I can see someone's actual muscle And I go oh And that pulls that tendon And that vein supplies the blood to that muscle Like, I'm just seeing a machine exposed.

[1282] How about this?

[1283] Do you like The Terminator when his skin comes up?

[1284] I love it.

[1285] There we go.

[1286] You don't like it or you do.

[1287] Now I don't trust anything you ever say.

[1288] Yeah, I really like that.

[1289] But that's like a robot.

[1290] It's kind of fun to see under.

[1291] It's a mechanical, whereas under a human, it just freaks me out.

[1292] Just thinking about my heart beating right now and what it's having to do automatically freaks me out.

[1293] I don't love that either because it's too much work and I'm lazy.

[1294] If I actually think about the fact that, like, I would never be able to tell my body to do something 20, thousand times a day i'd forget i'd get lazy and the fact that it's being done i just am so grateful and i get nervous if i think about it then i'll have to take over the the responsibility yes i don't want to think about any of it i think if i think about it something will change or i'll pick something up but i shouldn't something will go awry yeah same toxic shock ding ding ding ding okay okay okay we got to be done because i got to do you got to poop no we just this has to be edited quick oh right okay enjoy the sausage now that you've seen how it's made i love you Love you.

[1295] Follow Armchair Expert on the Wondry app, Amazon Music, or wherever you get your podcasts.

[1296] You can listen to every episode of Armchair Expert early and ad free right now by joining Wondry Plus in the Wondry app or on Apple Podcasts.

[1297] Before you go, tell us about yourself by completing a short survey at Wondry .com slash survey.