10.05.2025

[00:00:00] Welcome to Discourse where we cut through the noise and make sense of the chaos. I'm your host, Wayne Unger. I'm a law professor and former Silicon Valley nerd, and I've spent years breaking down complex topics into digestible takeaways. And on this podcast, we'll take a deep dive into the pressing issue, shaping our world in law, politics, technology, business, and more.

No echo chambers, no corporate influence, just thoughtful analysis and respectful civic dialogue. Because understanding different perspectives isn't just important. It's necessary. Let's get started.

All right. Welcome back to Discourse. I am your host, Wayne Unger, and we are recording this episode on Sunday, October 5th at three 15. Pm and may I just say welcome back everybody, because I've been MIA for the last five, six weeks now. The last episode that we recorded and published online was August 20th, 2025, and you might have done the math and been like over [00:01:00] the last six weeks.

Where has Professor Wayne Unger been? Well, let me just be transparent with you all. I was working on another project that took up the bulk of my time, and that project was affiliated with my full-time. Job, my full-time career as a law professor. So just to give a little background here, law professors, we often write pieces that talk about what the law is, what the law should be.

We theorize, we pontificate about the law. And we publish these pieces in law reviews or law journals across the country. So law schools, the students lead these law reviews. You might have heard of politicians who were the editor in chief of the Harvard Law Review, as an example. Well, my work doesn't get published in the Harvard Law Review, at least not yet.

In fact, I was asked this time around by the editors of my homeschool Quinnipiac. And it's a law review for a symposium that [00:02:00] we had two weeks ago on civil rights. Where have we been? Where are we at today and where are we going? Was the general theme. And so my piece that I just finished writing, and now that I'm finished with that, I'm back here on the podcast.

My piece discussed stare Decisis. The federal courts and civil rights in general. And so if you are unfamiliar with the term stare decisis, star decisis basically translates to let the decision stand. It's the principle and the doctrine in courts that we respect and we follow an appropriate, a decision of a previous court.

So for example, if the United States Supreme Court decides something. Then all lower federal courts and state courts, for that matter, if it's a federal question, have to follow what the Supreme Court says. Now, the Supreme Court, if it's rehearing, an issue that it had already decided in the past, well, it has the opportunity to either [00:03:00] overturn a previous case or affirm that previous case.

So recall that there have been notable, cases, precedents that have been overturned, perhaps one of the most notable is Plessy v Ferguson. Now Plessy v Ferguson was the case in which the court said Separate but equal is okay. It permitted segregation on the basis of race. Now, years later, the Supreme Court said, no, we were wrong in v Ferguson.

Now, it didn't say that verbatim, but that's how we've come to know that subsequent case called Brown v. Board of Education. Now Brown v Board of Education, the issue there was racial segregation in schools, whether it separate but equal was permissible in the education, the K through 12 education, context, and the Warren Court, Warren being Chief Justice Earl Warren.

I said for a unanimous court [00:04:00] that the answer is no, effectively overturning Plessy v. Ferguson. Now to be clear though, if a, a close read of Brown v. Board of Education, at nowhere does the Brown V Board of Education decision say that the court that decided Plessy v Ferguson was wrong. In fact, the word wrong doesn't appear anywhere in the Brown versus board education decision.

But now looking back of course, decades after Brown v Board of education decades after racial segregation, we now interpret Brown V Board of Education as condemning the decision by Plessy v. Ferguson. So I was writing a piece on star decisis and really the level of deference that federal courts should give when civil rights are at issue.

Now naturally this piece of writing had the op. I had the opportunity to talk a lot about Roe, [00:05:00]Casey, and Dobbs. Now to be clear, I did not take a position on abortion in that piece.

Rather, my writing evaluated the role of Stare Decisis and I criticized the Dobbs Court. For loosely applying star decisis and in so doing, causing a bunch of chaos within the legal system, which by the way, the Chief Justice, chief Justice Roberts predicted in his concurrent opinion in Dobbs. So my argument in that piece, which will be publicly released in the coming months, and I'll be sure to share it with you all once it is published.

My argument. Is that the court needs to be more disciplined when it applies stare decisis or when it reconsiders a precedent. When that precedent has to deal with the interpretation of an amendment to the United States constitution, [00:06:00] specifically the civil rights and liberties parts. So case in point, first, second, fourth, fifth, sixth, eighth.

The 14th amendment, that when the court reconsiders precedents in those areas, when civil rights and civil liberties are at issue, it needs to apply it in a more disciplined manner. And I criticize the Roberts court, the current court, the super conservative court. For loosely applying it, and in so doing, really taking a position of judicial activism.

Now, judicial activism, here's, here's what I'll say on judicial activism. First, define the term judicial activism is when the judges, or in the case of the United States Supreme Court, the justices. Have no qualm really about kind of ruling as they want. They're, they're very active on the court and they do not restrain [00:07:00] themselves.

So judicial activism is the opposite of judicial restraint, and the principle of judicial restraint says, well, we should not decide anything in a case that we need not decide to dispose of the case, meaning we need to answer the question that's presented to us and only that question in order to have that resolution be given.

In that case, now, courts across time and history, every chief justice, every justice on the United States Supreme Court has kind of hin bin hawed back and forth between being an activist and then being, somebody who issues or who respects restraint. Chief Justice Roberts guilty himself. Now in Dobbs, chief Justice Roberts said we should be restraining ourselves as a court.

We do not need to overturn Roe v. Wade in order to settle the issue that Alabama, which is where the Jackson [00:08:00] Women's Health Organization originated. We don't need to decide an issue that is overturning Roe v. Wade to solve this case that came out of Alabama. Now we know how this turned out. The majority on the court overturned Roe v Wade and Planned Parenthood v Casey.

But in the chief Justice's eyes, they deemed they did not need to do that. They did not actually have to overturn it in order to end the case. So that's the difference between judicial activism and judicial restraint. The thing here is, in my analysis, I have seen more judicial activism from the conservatives on the court than I've seen judicial restraint.

And in fact, at least from a stare decisis perspective, the liberals on the court today have exercised significantly more judicial restraint than the conservatives. Now, years ago, and I think this is still true, the general narrative by politicians [00:09:00] is that the liberals on the court. Are the activists on the court and judicial activism is bad.

That is the general speaking point of conservative politicians such as Republicans in the Senate. But when we peel back the layers of the onion to use whatever that analogy is supposed to mean to peel back the layers of the onion, we actually find out that the true activists on today's court are the conservatives.

So that piece will be published in the coming weeks, and I'll be sure to share it with you all. But that is what I've been working on and it has taken up a significant amount of time.

But let's turn our attention to what this podcast is truly about, day in and day out, which is trying to make sense of the chaos in the world. And over the last six weeks since our last episode, a lot has happened. Probably not a surprise, and believe me, there were many times where I wanted [00:10:00]to jump on this microphone and tell you what I was thinking about the various issues, but I had to prioritize that piece because I faced a deadline.

So instead of going chronologically through every major incident that has happened over the last six weeks, I'm going to focus today's episode just on a couple of the biggies. And perhaps the biggest news story over the last six weeks was the assassination of Charlie Kirk. You might have heard hopefully by now, because it was all over the news, national, international, even definitely local news that Charlie Kirk was assassinated at Utah Valley University.

He was on his college tour. Now let's take one step back. Charlie Kirk was the founder of an organization called Turning Point USA, headquartered out of Arizona. He started the organization at 18 years of age and grew it to be a pretty significant power horse [00:11:00] in the Republican party. And the general concept, and hopefully I'm not butchering the, the kind of mission statement of Turning Point USA.

The general concept though was how can we engage the next generation of youth? To be more politically active and specifically on the conservative side. So it was kind of like this conservative youth movement organization and by and large it was successful. Now, I don't agree with some of the policy positions that Turning Point USA advocated for, and I certainly, as I've said on the press, I did not agree with many of Charlie Kirk's perspectives.

But I will say objectively that turning Point was successful and has been successful for the Republican Party in engaging the youth vote.

I am unaware of any organization on the left that has been able to [00:12:00] mobilize as turning point USA has done over the last several years. So Turning Point USA, one of the big things that they do is they bring together chapter members.

So they have chapters at universities and high schools all across the country, and they bring those student leaders together for conventions and conferences where they bring some of the biggest names in the Republican party to present to them through panels, through keynotes, stuff like that.

Kind of an ordinary convention or conference that you would normally expect. And in so doing, they're able to communicate policy positions and of course energize the youth. Now let me pause here and say, once again, it was successful. It has been successful. And one of the things that Charlie Kirk did himself was he would go on tour visiting college campuses around the nation [00:13:00] and he would engage with the students directly in kind of these forums, these q and a forms, in which students would ask questions and he would respond to those questions and he would not shy away, of course, from the controversial questions, he would say what was on his mind.

And he was exercising this fundamental right at Utah Valley University when he was assassinated. He was there sitting on a stool answering a question about violence, and he was shot and killed. Now, the videos from that presentation, you had thousands of students. All watching Charlie Kirk answered these questions and you had thousands of students, maybe not thousands, hundreds of students.

I think it's safe. Hundreds of students recording the incident as it happened. One shot fired, hit Charlie Kirk in the neck, and almost [00:14:00] instantaneously these videos get posted to social media and they go viral and. What I have noticed over the last several years, perhaps dating back to say, George Floyd, perhaps going back even further and other civil rights moments over the course of the history of our nation is when it is slapped in front of the public's viewpoint as this assassination was.

This assassination happened and it was immediately posted. Video footage of it was immediately posted to social media. Algorithms picked it up, disseminated it across the world. Very tragic to see somebody get shot and killed live. Knowing that it's not fiction, right? Knowing that we're not watching some sort of movie or TV show that it's very much a real life shooting that led to the death of this person.[00:15:00]

And the same is true if we go back to 2020. We saw the video of George Floyd and Derek Chauvin, the police officer now convicted murderer, putting his knee on the neck of George Floyd. That was another moment in which the death of a person was recorded, immediately distributed, it went viral, and that evoked emotion in everyone who saw it.

And I will say Charlie Kirk's death just as tragic as any other political assassination. I don't agree with, with Turning Point USA, and I did not agree with Charlie Kirk on pretty much everything for that matter, but I nonetheless respected his rights to go on to college campuses and engage with students.

In fact, that is what the First Amendment is about. See, the First Amendment at its core is about engaging with each other. Our ability, my [00:16:00] ability to have this conversation with you all through this podcast medium and share my political speech. My political thoughts, that's what Charlie Kirk was doing.

That's what Charlie Kirk was doing. He was exercising his first amendment right to speak about contentious, controversial political issues, and he was shot and killed. If we condemn assassinations like Martin Luther King, like Malcolm X, like George Floyd, then we ought to condemn the assassination of Charlie Kirk because at its core, they're the, they're the same where somebody was shot and killed for exercising their rights to protest, for exercising their fundamental right to free speech.

You can't pick and choose. You can't pick and choose and say, Hey, we [00:17:00] condemn political violence when that political violence kills somebody like Martin Luther King Jr. But we don't condemn it when it kills somebody who we disagree with, like Charlie Kirk. Now, this led of course, to a slew of comments from around the world.

From conservatives who quickly said, we've lost a friend, we've lost a figurehead, and in some way he is a martyr. You had other viewpoints on the left saying pretty much the same thing, which is we've lost somebody who was a mover, a shaker, and it is tragic and we feel for his children and we feel for his wife and how they are mourning right now.

Those are respectable comments in my view. But there was disrespectful commentary that followed the Charlie Kirk assassination as well. So many [00:18:00] on social media in particular. And to be fair, I don't know whether these were, I'm I, I, I'm guessing that they were real people and there was probably a few bots in there throwing this out there, how those who celebrated his death.

That's just not right in my book. We shouldn't celebrate political violence being taken out against somebody who we disagree with. That's not the answer. We as a country have responded to political dissent to those who express political viewpoints that we don't agree with.

We have a history as a country in responding to them with violence. I mentioned a couple of those assassinations, right? MLK, Malcolm X, and those are just a few. We have a long history as a country of political violence against our political opponents. And I am not saying that that justifies or somehow, [00:19:00] excuses the assassination of Charlie Kirk.

No, that's not what I mean. But what I mean here with Charlie Kirk and with political assassinations in general is that we ought to reject violence as a way of silencing those who have political viewpoints that are different than our own. We must not. In fact, we cannot allow political violence to be the solution to speech that we dislike.

Because the fact is, the fact is the First Amendment protects all forms of speech. It protects your view. To express your political opinion, opinion, and it also protects somebody who disagrees with you and their political opinion. It also protects hate speech. You may dislike hate speech. That's fair. I think those are [00:20:00] reasonable perspectives, respectable perspectives, but nonetheless, the First Amendment protects it. The First Amendment protects hate speech. It protects political speech.

Just as you have the right to express your political philosophies and your political opinions, I have a right to condemn those as well.

Now, the most notable, I would say, response. Some of the comments that were made after the assassination, the most notable probably was Jimmy Kimmel. Jimmy Kimmel, of course, hosts his night show on A, B, C, and A B. C is owned by its parent company, Disney, and they temporarily suspended. But the news at the time was an indefinite suspension of Jimmy Kimmel following some comments that he made on air following the assassination.

Now, if I remember correctly. His comment was [00:21:00] that the shooter, that the Republican party was trying to distance itself from, quote one of their own. And of course the implication in that comment was that the shooter was a MAGA Republican.

I'm gonna set the content of that to the side for a second. A lot of the backlash after Disney decided to indefinitely suspend Jimmy Kimmel was a conversation around the First Amendment. Now I teach the First Amendment right. I study the First Amendment, I write about the First Amendment, and here's the nuance of what happened with Kimmel.

I'd argue that it wasn't a direct violation of Jimmy Kimmel's free speech rights. In spirit, it was that, I will admit. So let me explain. Leading up to that suspension, what happened immediately before is the [00:22:00] FCC Chairman, the chairman, gets on a podcast and says, Hey, Disney. Hey, A, B, C, we can do this the easy way, or we can do this the hard way.

He made comments about revoking some of the affiliate A, B, C stations, their licenses in order that they need in order to broadcast those licenses are granted by the FCC, the Federal Communications Commission. So he flat out said. We could suspend or revoke the licenses of a, b, C affiliates. And the FCC Chairman made the connection between Jimmy Kimmel's comments and the threat of revocation of those licenses.

So the FCC chairman essentially did this work and said it explicitly so that we don't have to take a guess as far as what he meant. Okay, set that aside for a second. [00:23:00] Donald Trump has also said that he has not liked ABC's coverage of him, and he certainly has not liked Jimmy Kimmel's comments about him.

But like I said, the First Amendment not only protects the speech of your political viewpoints, it also protects the speech of somebody else and their political viewpoints. And Jimmy Kimmel has. Again, every right to say what's on his mind, but the Constitution only applies to government officials. So Donald Trump as president of the United States FCC Chairman Carr, those officials have to abide by and respect constitutional law.

Disney doesn't have to do that. Disney is a private employer. And a private employer has every right, [00:24:00] generally speaking, to suspend or terminate one of its employees for something that that employee said. The employer has every right to terminate an employee for saying something that they disagree with.

You might recall that there was a bird watcher in Central Park, a black man, and you might recall this video going viral during the pandemic and the lockdown. A white woman is walking her dog in Central Park and she's walking her dog off leash.

The black man is a birder. He's out there watching birds. And he asks her to leash her dog, and she gets very feisty, for lack of a better term. A little a altercation between the two of them. Wouldn't be a big deal. Rather, I think what the tipping point of that interaction that confrontation was [00:25:00] was when she picked up her cell phone and called the NYPD claiming, falsely claiming that the black man, the birder, was intimidating her and was threatening her when the video was so clear that he was doing no such thing.

He kindly and respectfully asked her to leash her dog, and during the confrontation, he was calm and respectful, and she was terminated from her job shortly thereafter. That is completely permissible again. An employer can see a video of one of their employees even for conduct outside of the workplace and say, you know what?

That doesn't represent us. We don't want you working here anymore. You're terminated. And that is what her employer did in that situation. Now, does her employer have to follow the First Amendment? Generally, no. Not a government official. Not a government [00:26:00] actor. So that's the difference here. Jimmy Kimmel was suspended by his employer.

That in itself is not a First Amendment violation. The tricky part with Disney A, B, C, and Jimmy Kimmel comes into why was he suspended and whose first amendment rights are potentially violated here. So given the connections that Donald Trump was drawing and that Chairman Carr was drawing at the same time that this was happening, arguing that Jimmy Kimmel needs to be suspended, that it needs to be taken off the air because of his comments.

And if a B, C, Disney does not do that, then we will suspend their licenses or revoke their licenses. Now we have a First Amendment issue. The government actor, or the government official here is the chairman and the president of the United States [00:27:00] threatening to take an adverse action against a private entity, A, B, C.

For the speech that one of its employees, Jimmy Kimmel said publicly that would be a violation of the First Amendment. And in fact, the mere threat of that is in a way also a First Amendment violation. So there are some cases on point here in which the First Amendment protects you against threats. By the government where those threats could chill your speech.

And ironically enough, the court, the Supreme Court of the United States recently affirmed that doctrine in a case just this other term, and the petitioner in that case get this was the [00:28:00]National Rifle Association, the NRA. And in that case, I'm going to paraphrase here. In that case, the court said it is an egregious violation of the First Amendment when a government official threatens a person or an entity for their speech.

And that is so much so well established that actually the NRA case was a unanimous decision. They unanimously nine to zero affirmed. What the doctrine was, that is what we had here with Jimmy Kimmel, the SEC Chairman, president Trump, and the whole affiliate license debacle. We had government officials threatening to revoke the affiliate licenses of a B, C affiliates.

That would be a violation, and certainly if they had proceeded to do so, if they had actually [00:29:00]revoked those licenses almost positively and une unequivocally, a First Amendment violation, in which Disney then could file suit because Disney is the direct injured party. Either the affiliate owners. Or A B, C and or a B, C could bring the lawsuit against the Trump administration to enjoin the Trump administration, NFCC, chairman Carr, from revoking those licenses, enjoin meaning a court order to stop them from doing that.

And if they had done it, then the court could have ordered the reinstatement of those licenses.

If they had not, if they had not revoked those licenses yet and it was a mere threat, A, B, CI would argue, could still file suit and argue that this injury, this [00:30:00] alleged injury, this threatened injury of revoking these licenses. I think Disney could have argued, Hey, it's imminent because of what they have said publicly.

The chairman and the president of the United States has said publicly, it is an imminent, it's an actual injury that might occur, and it would, of course, hurt our interests economically.

And we saw what that backlash was from the public. Many individuals, many subscribers to their subscription services. So Disney has Disney plus of course, but A B, C also has its own slew of apps, and it has Hulu. Disney owns Hulu. So when that suspension was announced, and I don't know the exact figure, but probably hundreds of thousands if not millions of people moved to cancel their subscriptions [00:31:00] and that's their form of protest.

And they again, have every right to protest. That way. You, if you do not like something that a corporation does, you have every right to protest them.

Disney reportedly lost 1.7 million subscribers between Disney plus Hulu and ESPN. During that time in which Kimmel was suspended.

Now of course, Disney, shortly thereafter, reversed course brought Jimmy Kimmel back on the air.

Now that doesn't mean Jimmy Kimmel would've been without some sort of legal action here, I would argue that Jimmy Kimmel might have had a First Amendment claim against the Trump administration as well, because he had a direct financial interest being the host of that show that by being taken off the air as a result of the Trump [00:32:00] administration's threatened.

Actions against A, B, C, the employer that he is now economically harmed. I think a court would've bought that, that would not be a, a super attenuated injury. But the easiest case here would have been Disney bringing the lawsuit against the Trump administration. Jimmy Kimmel might have had a cause of action against Disney for that suspension and it's possible that in order to get back on the air, he agreed to waive any legal claim he had against Disney. So generally speaking, we know that on air talent like Jimmy Kimmel. Like Meredith Vira, like any of the hosts on the View, they have contracts for the time in which they're on a show, and those contracts have a duration. So I [00:33:00] don't know how long Jimmy Kimmel's contract is, and in fact, there's lots that we don't know about Jimmy Kimmel's contract, but it's safe to assume that he has one..

And Disney might have violated that contract when they suspended him. But that's all speculation to be very clear, because we ultimately do not know what's in that contract. And rightfully so, there's probably a confidentiality agreement as a part of that contract. So the public would probably never know unless there was a lawsuit brought and that contract was filed with a court in which the court filings are there for public.

Now many conservatives argued this really wasn't a free speech issue. Many conservatives argued that Disney had every right to remove him for a disgusting comment is what they viewed it as. Well be that as it may. [00:34:00] I think what is getting lost in the Trump administration, Trump too, is the long-term ramifications of what the Trump administration is doing and has done.

So if, for example, we allowed the Trump administration to come down on Disney and a, b, C for something that Kimmel said, well, who's to stop a future president of the United States? If we set a precedent that we're going to allow the president to revoke the licenses of media companies when the president doesn't like what that media company says, who's to stop the next president, perhaps a Democrat from revoking the licenses that maybe.

More conservative media outlets need who's to stop the President, for example, from revoking the Press Pass for Fox [00:35:00] News. Those are the ramifications that we, we ought to be considerate of as Americans during this administration. Donald Trump calling up the National Guard and sending them into American cities, you might think.

That's permissible. You might think that that's constitutional. I'm not going to opine on the legality of that 'cause that's a little bit outside my wheelhouse. But what I will say is be careful what we allow. Because if we allow it for this scenario, then we could open the door to a future scenario in which we don't like.

If we allow a conservative president to call up the National Guard. To police. That's what they're doing. Local law enforcement to police a traditionally liberal city. Then again, what [00:36:00]happens in a future administration? Be it a Democrat is in the White House and the Democrat says, you know what? We're gonna send troops into a staunch red city.

See, there's an inherent danger to that. We cannot allow the president to take actions that we agree with, only because they are attacking the other side.

 We cannot look the other way when the Trump administration, a conservative administration, takes an action just because it's against the liberals that we let it slide and it's not an issue. But God forbid a Democrat is in the White House and does the exact same thing.

Now we have an issue that's hypocrisy at its finest and there's a grave danger in the world of politics and governance. When we allow that to happen, because when we allow it to happen and we normalize that behavior or that conduct or that exercise of power, [00:37:00] then that just gets pushed further along down the road.

Down the road, we again push up against that barrier, and before we know it, something spins out of control. The Constitution prescribes limits to the federal powers.

The Constitution is clear that it constrains the federal government. So when we have a zealous executive, regardless of the party in office, taking actions that exceed or go way beyond the boundaries of federal power, we should be concerned about that.

Everyone should be concerned about it. I thought of starting a new podcast series, but then I remembered I already had a podcast. And then I also remembered if I can't consistently do a weekly a post episode on this [00:38:00] podcast, why start another, put that aside for a second, and I thought of calling this other podcast if I were running and the concept was, or is if I were running for office, this is what I would say.

And so perhaps I'll just work that into the existing podcast into this one. So if I was running, here's what I would say.

These are dangerous times. These are dangerous times because we have government actors. We have elected officials who are pushing the boundaries of the Constitution and the powers that the Constitution gives them. We must reject the infringements upon our individual rights and liberties when they are so blatant, even if we agree with the outcome, because the means in which they are being taken is extreme and offensive to the Constitution, [00:39:00] to the United States and to who we are as people.

So I know that there's a lot that we could have discussed today on today's episode, but we're gonna end it there.

Thank you all for listening and we'll see you next time.

That's it for today's episode of Discourse. Thank you for tuning in and being part of the conversation. You can catch future episodes of discourse wherever you get your podcast. If you found this discussion insightful, be sure to subscribe, leave a review and share it with others who value thoughtful analysis over the noise.

You can also join the conversation by visiting discourse paw.org and following me on x and blue sky at Prof Unger for more insights and updates. Until next time, keep thinking critically, stay curious, and engage with respect. We'll see you soon.

Discourse is a commentary podcast for informational and educational purposes only. It does not constitute professional advice or legal advice. The opinions expressed are solely those of the hosts and any guests. And do not reflect the views of [00:40:00] any employer, institution, or organization. This podcast is not journalism and does not adhere to journalistic principles.

It offers analysis, opinion, and discussion on current events, but should not be relied upon as a news source. Listeners should consult qualified professionals for legal or otherwise expert advice specific to their situation. Thanks for listening.