Unpacking the Court
A discussion with the attorney and "Really American" legal host Ethan Bearman
A multifaceted talent spanning law, technology, politics, and media, Ethan Bearman, my guest on today’s PREVAIL podcast, has his own law firm, 25 years of business experience, and over a decade of media experience. He had his own radio show, and he’s been on networks like CNN, DW, France24, NewsNation, Fox Business, and Fox News, where he’s sparred with the likes of Jenna Ellis. Ethan is a member of the Los Angeles County Bar Association, and is admitted to practice in California and the United States District Court, Central District of California. He is a contributor to California State Antitrust & Unfair Competition Law (Matthew Bender 2018). And most recently, he is the legal host of Really American, where his clips can be seen on their YouTube channel.
I always enjoy talking to Ethan because, first, he knows a lot about a lot of different subjects, and second, even when the chips are down, he remains hopeful and optimistic. Here are three takeaways from our wide-ranging discussion:
The TikTok ban, if it happens at all, won’t happen anytime soon.
The morning after the President signed the bill into law that provides ample aid for Ukraine, Israel, and Taiwan—but also contains a proviso that the Chinese owner of TikTok must divest in ten months—my son, who is 19, sent us a text:
I don’t like/use TikTok, but banning it is so so so bad. So many people make their livings off of TikTok. “Oh no they sell our information.” Dude, every company does that.
His concerns are legitimate. Banning the social media platform most popular with Gen Z six months before an election when you’re depending on Gen Z turnout is not savvy. It doesn’t matter that the bill calls only for divestment of ownership. That’s nuance, and the American people don’t do nuance. “Biden wants to ban TikTok” is a pretty good talking point for Trump.
But will this actually happen? Will the government really take down TikTok? I asked Bearman about the future of the platform.
“The issue is that [there are] a number of different violations by specifically banning one social media platform—because it’s not the only one that has foreign ownership, by the way,” he tells me. “This one specifically has a Chinese ownership behind it. And does national security—are those valid national security concerns? And are they sufficient to overcome everything from First Amendment issues to Fifth Amendment ‘taking’ issues to various other business statutes and interference by the federal government?”
This won’t be a case where TikTok works today and is shuttered tomorrow. “It’s going to be in the court system for a number of years before you have to worry about it going away.”
In a diffuse media system, the most profitable outlets are the loudest.
Media is failing. As a business model, it’s failing. Local newspapers are practically extinct. Other outlets are being consolidated. Journalists are being laid off. I get that media is a big business, and big businesses have to worry over the bottom line. But I don’t understand how media can be losing money, when all any of us do, all day long, is consume media. To my rhetorical question, Bearman offers an explanation:
I have an answer for that, too. Oh, no, it’s really easy, and it’s nothing that people want to hear. And this is why an entirely user-consuming supported model is so difficult.
So it was technology [that] killed the newspaper and media business and the television news business. So when we removed the gatekeepers, and we said everything and everybody has a platform, [that] is really what happened. On the newspaper side, it was Craigslist that killed the newspapers. Not saying it was necessarily a bad thing, but they made their money off of classified ads. The television news business made their money off of having three channels to choose from to watch your television news. CNN came on board. It was okay when it was just CNN. They didn’t devastate the traditional news business. But then it became Fox News. Then it became 18 other channels. Then it became social media.
And I don’t consume my media on one of three networks anymore. I have diffused the monetary base so broadly and widely, I can’t sell the same amount of advertising to support having three or four producers on a single news program….
And so it’s the diffusion of the money. The money didn’t continue to grow at the same pace, but they said, “I’m not going to advertise over here now. Now I’m giving the money to Google.”….So local news is dead and dying because of that. The money isn’t there.
But it’s tech, it’s the tech bros. It’s not that they’re wrong or bad, but they never shared the money with the people who were creating the content. Even when you look at YouTube, you know, you have to have so many followers, so many subscribers, so many views, they have to actually view the ads to actually get paid for putting your content up on YouTube—where Google’s making money every step of the way, [and] they’re selectively distributing those funds to people….
It’s that bad. And there is not a great answer to it, other than wealthy people continuing to fund organizations and or grassroots groups of individuals who support shows like yours, like MSW Media and the various shows on that podcast network.
It really is like bad science fiction, where artless tech-bro incels eliminate the creative class from the equation. AI winds up writing all the shows, producing all the music, making all the art. And our society suffers, and the AI logarithms can’t produce the poetry to properly explain what we’ve lost.
The only way to make money in this environment is to stand out, to be provocative, to push boundaries. That’s why every YouTube clip always promises to DESTROY something or someone. Solid but staid content doesn’t generate enough clicks.
“There’s not enough money,” Bearman says. “I played with my radio shows early in my radio career with doing NPR-style or just always equal: hey, let’s have a logical discussion about this. Those all had the lowest ratings of anything. And so you’ve got to turn it up to 11. And I mean, Spinal Tap is absolutely referential to this day. You have to do things that spice it up for listeners when you’re in a for-profit environment.”
Expand the court, but don’t use the phrase “expand the court.”
As I type this, the Supreme Court has been hijacked by grouchy reactionaries whose decisions are so awful, they threaten to undermine our collective faith in the entire judicial branch of government.
The solution to this problem is simple: expand the court. Clarence Thomas and Sam Alito and Brett Kavanaugh become markedly less powerful when they are three of 27 instead of three of nine. Expand the court! But don’t call it that, Bearman cautions me. That phrase is a loser.
Not “expand.” I think that’s the wrong phrase, and I wish people would stop saying it. No, let me, this is a hot topic for me. It really is. It’s “unpack the court.” ….We’re unpacking by expanding it. I just—I’m always worried when you say expand because that immediately becomes a political issue. It never should have been a political issue.
I’ve been saying this for many, many years—long before where we are today with the Supreme Court—which is: historically, the number of justices equaled the number of circuits. So the last time it was expanded to nine was mid to late 1800s, right? Nineteenth century, because they had expanded the number of circuits to nine. It should always match the number of circuits. That’s how it was intended and set up. And that’s what the precedent [is], if we want to use the historical concept of it, if we’re going to be originalists about how things happened, that’s what it was. So there should be at least 11, if not 12, Supreme Court Justices.
My number would be 27: the current nine, times three. But Bearman’s point still holds.
And I like his phrasing. Right now, the court is packed with reactionary weirdos: Thomas, Alito, Roberts, Kavanaugh, Gorsuch, Coney Barrett. It’s packed. It’s clogged—like a toilet, or a colon. What we need to do is unpack the court. Take a plunger to the jurisprudential clog.
To paraphrase Jack Nicolson’s Joker: This court needs an enema.
LISTEN TO THE PODCAST
S7 E10: Candidates, Courts & Cartels (with Ethan Bearman)
In this conversation, Greg Olear and Ethan Bearman discuss the potential ban on TikTok, the issue of free speech, defamation, the role of the media, the housing market, and the impact of conservative policies on the middle class. They also touch on antitrust laws, the Supreme Court, and the upcoming election. Finally, they speculate on the potential impact of the upcoming trial on the MAGA movement and the importance of voter registration and engagement. Plus: dirty laundry disco!
“The law, in its majestic equality, forbids rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread.”—Anatole France
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Really American:
https://www.youtube.com/@ReallyAmerican/videos
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Photo credit: Supreme Court. Formal group photograph of the Supreme Court as it was been comprised on June 30, 2022 after Justice Ketanji Brown Jackson joined the Court. The Justices are posed in front of red velvet drapes and arranged by seniority, with five seated and four standing.
A real problem I see in the media's coverage of Trumps various legal problems is that the main focus is on Trump "running out the clock". The assumption always being he wins the election and kills his legal problems. That is acting as a "presumptive close" for Trump and can be self-fulling. Car salesman, contract negotiations, advertising use it all the time. And it works. It's already got him the nomination and may just work for the election if enough people buy in...just like 2016.
The only thing standing in the way of "unpacking" SCOTUS is SCOTUS and GOP. Funny how the Corruption always makes it improbable for the Un-corrupting
When I heard Justice Jackson say this, I immediately thought of LB and you, Greg:
“If someone with those kinds of powers, the most powerful person in the world with the greatest amount of authority, could go into office knowing that there would be no potential penalty for committing crimes, I’m trying to understand what the disincentive is from turning the Oval Office into, you know, the seat of criminal activity in this country.”
Now, back to our regular programming with the "Really American" Ethan Bearman.