is more crucial and unusual? one of most influential appellate courts erupt ed in public disagreement over one of the most difficult issues of our time. homelessness. having recently decided matters of affirmative action, student loans and adoption, on top of the rulings concerning abortion, guns, religion and climate change, scotus might have the final word. ordinances in oregon, which would impose fines for encampment on public property. a trial court was faced with this issue whether cities can

impose criminal penalties for sitting, sleeping or lying outside on public property for homeless individuals who cannot obtain shelter. it held at the ordinances were unconstitutional and constituted cruel and unusual punishment under the eighth amendment. the matter came before the powerful 9th circuit court, which has jurisdiction for the western united states and all of california. the ninth circuit has been regarded as a progressive bastion, but president trump was able to appoint ten judges to the ninth circuit. it limited what idaho could do with regard to its homeless. this time a three-judge panel similarly ruled against a city's effort to regulate its homeless population. when grants pass then sought to have the matter considered by the entire circuit, it could not get the required vote from all a act tiff members of the bench.

that's when all hell broke lose. the denial of a full review drew 16 dissents and many statements. as the oregonen reported, many who dissented argued that it created a confusing set of rules based on a flawed interpretati and made the judges in inappropathomeless policy czars. it placed a straight jacket on west coast cities that are now left with little recourse to deal with an insurmountable and widespread rise. the conservatives on the court ruck a united front as "los angeles times" put it in their spobs, the conservative wing painted a portrait of an american west deprived of public spaces and under siege. in response, to judges in the majority on the panel wre that

ruling, which holds only the governments cannot criminalize eeping with the use of protections, such as betting from tments in some public places when a american has nowhere else to sleep. it does not establish an unrestrained right for involuntary homeless persons to sleep anywhere they choose. i previously reported on tragedy of homelessness in los angeles and san francisco, both cities subject to the law established in this decision. after touring skid row in l.a., i came away thinking homelessness is not the core issue. but a manifestation of what drives the problem namely mental health and drug addiction. so the real question becomes, is it cruel and unusual to impose a fine on homeless people? that's the view of the ninth circuit panel, or crucial and unusual to allow individuals who due to mental illness lack the capacity to make sound judgments

to keep themselves safe. i have a feeling the supreme court is going to take on this case and decide the latter. but i want to know what you think. go to smerconish.com and answer the poll question. which is more cruel and unusual? finding the homeless or leaving them alone? joining me is the lawyer who is a partner in the firm of gibson dunn. thank you for coming back. what's wrong with the majority thinking that if there's not a bed for someone, it would be crucial to find them? >> this is an urgent crisis. this case is about giving cities the tools they need to solve it. the court's decisions from the ninth circuit have created a situation that's unworkable. it's caused paralysis in a time when we desperately need action. the ninth circuit's view of the eighth amendment is

unprecedented and no other court in the country has adopted it. right now when we're faced with this crisis of thousands of people who are.netting on our streets, cities need to have the flexibility and the tools to address it. the ninth circuit's opinions are really a serious part of this problem that have tied the city's hands in addressing this crisis. >> the two who wrote the majority opinion, as i referenced, they say this is all being mischaracterized. we're simply saying you need to have a bed for someone before you go and criminalize their behavior. if you don't have the beds, then you're limited. >> what the ninth circuit has held in these decisions actually is that the cities can't prohibit anyone from camping in public until there are enough beds for everyone. no other court has adopted this sweeping view. and if you look at the numbers

of the shear magnitude of this problem, it's unworkable because in the city of los angeles alone, there are over 70,000 homeless individuals right now. so it is in the meantime an urgent problem. >> right. i'm playing devil's advocate. i happen to see this in similar fashion to your point. . but the majority in this case says, hold on, it's unfair if you have to where to go. if there's not a bed for them, they have nowhere to go. what's the response to that? >> this is a complex problem, as you said. this is a problem that cities need to debate. local communities need to figure out what the right solution is in each community. we need to hear from experts in mental health, substance abuse, housing. there's no one size fits all solution. what they have done is take that

debate off the table. it's put forth charges across the western united states and the results of these decisions can be seen by anyone who walks down the street in any of our cities and from san francisco to phoenix right now, both of those cities are under federal court injunctions preventing them from addressing this problem. that's what's cruel and unusual. >> i remember we had a conversation, the two of us, after boise. you wanted the supreme court to take the boise case and it didn't. do you think the court is going to take this matter now given this ruling? if so, which way do you think it goes? >> we certainly hope that the court will. we had hoped the circuit would take up the case again in reverse course, but it refused to do so. now there are millions of people

across the entire western united states who are looking to the supreme court to untie the hands of our local governments and to allow us to take action. >> i hope that people's eyes did not glaze over during the setup, but i thought it was important to try to set the stage. what's the take away? what just happened here for someone who is paying partial attention and wants to understand what it means to them? >> 16 judges on the 9th circuit have sounded the alarm. they have said that this decision, these decisions are wrong. they are causing this problem to worsen. conditions have gotten so much worse since the last time we spoke. we hope that the supreme court will intervene to help solve this problem. >> thank you. i appreciate you being here. >> thank you. what are your thoughts?

hit me up on social media. i'll share some during the course of the program. we have a new feature. you can live chat during the show. i'll pull some of those comments also. thisment cos from the world of youtube. we already know how this court will rule on any case involving homeless people, says harvey. i guess, meaning he thinks -- are you talking about the ninth circuit? they have changed, but i think you're talking about the supreme court of the united states. i think they need to take this case. they should have taken the boise case. they didn't. the country needs defined parameters relative to how to deal with this problem. and right now, the western united states, i agree with her characterization. that of the dissent. they have been put in a straight jacket. they don't know what to do. t this seems to limit eir opportunities to provide some help to people who desperate lu need it. i want to know what you think. go to smerconish.com and answer

the poll question. which is more crucial and unusual? up ahead, a federal judge rule d against the government being automobile to tell social media how to moderate concept calling previous evidents ar arguably the most massive attack against free speech in united states history. i'll tucalk to one of the plaintiffs who says his approach to covid-19 was censored. now that race-based college admissions are out, legacy admissions are under fire. i'm going to try to make the case that theyey should stay. so i consolidated it into a low-r-rate personal loan from sofi. ditch credit card fees and high interest. borrow up to $100k. sosofi. get your money right.

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this week a federal judge in louisiana restricted the biden administration's interaction with social media companies. judge dowdy said if the allegations made by plaintiffs are true, the present case arguably involves the most massive attack against free speech in united states history. this might be afn overstatement but by the time this case winds through the appellate process, it might produce one of the most kobs kwens shl decisions in the united states history. the case was brougthe attorneys general of missouri

and louisiana and half dozen other plaintfs, who "the new york tim" described as follows. five individuals who campaigned against mas argued that vaccines did not work, opposed lockdowns and pushed drugs that medical experts denounced ineffective. to address what it believed to be the spread of misinformation, white house officials and public health agency leaders held biweekly meetings with tech companies over how to curb the spread of misinformation during the pandemic. former white house director of digital strategy rob flaherty and andy slavic were in constant contact with social media executives. here's an example of what ensued. this an e-mail following an april 2021 meeting between biden administration and youtube officials a about vaccine misinformation and efforts to combat it, rob flauerty, former assistant to the president and director of digital strategy,

wrote his concern about misinformation on youtube was, quote, shared at the highest and i mean the highest levels of the white house. the white house remained concerned that youtube is, quote, funneling people into hesi hesitanc adding, quote, we want the to make sure that youtube has a handle on vaccine hesitancy and is working toward making the problem better throughout the entire opinion, the judge highlighted several uses of the words we and partnership reenforcing the idea that the government was pressuring a private company about curtailing speech. the ruling provides exceptions when it comes to posts involving criminal activity, national security threats, voter suppression, or foreign interference in elections. it could curtail efforts to combat online misinformation. the justice department is appealing and requesting a stay. a white house official defended

the administration's actions saying the government, quote, has promoted responsible actions to protect public health, safety, and security when confronted by challenges. two of the plaintiffs have been guests of mine variously on cnn and on my sooir yus xm radio program. they co-authored a piece for smerconish.com entitled "the beauty of vaccines and natural immunity." here's how they are identified. the plaintiffs are infectious disease epidemiologists and co-authors of the great declaration published on october 4, 2020, they criticized lockdown policies and expressed concerns about the damaging mental health impacts of lockdowns. they allege that shortly after being published, the gbd was censored by google and facebook, twitter and others. joining me is an epidemiologist,

who is a professor of health policy at stanford university and has a ph.d. this economics. welcome back. doesn't the government have some degree of obligation to inform social media platforms about that which might be harmful to the public? >> i hmean, the government has the platform. they can say whatever they want. no one is stopping them. the question is whether the government can use power and force to tell social media companies who to censor and threaten those companies if they don't comply. discovering for this what we found is rob flaherty sent e-mails to facebook directly threatening regulation around section 230. saying that's a nice company, wouldn't it be terrible something were to happen. the irony is they were censoring

in service of ideas that were wrong. they were protecting its own misinformation, criticism of its misinformation by censorship activities. >> i guess what i'm say ing if the government had limited itself to providing valid information without being coercive, and i think in this opinion when you look at the examples, what i just showed, this is coming from the highest level. i mean, the highest level of government, i think it turned coercive. but i don't think the government surrenders its own speech write. the press secretaries got the opportunity and right to speak on behalf of the administration on a day-to-day basis. what i'm trying to say is there's a balance somewhere in there that's necessary. fair? >> yeah, i agree. don't think it's -- this decision doesn't say the government can't speak. i don't think anyone was looking

a at it would think that. what it says is the government can't coerce social media companies to censor me, but just because they disagree with me. i'm criticize ing thafr ideas. and they got it deeply wrong. they were wrong about mask mandates, and yet they forced youtube to take down a video of me talking to ron desantis because i said there's no high quality evidence that masking does anything. there's still no trials. they forced social media to censor true content because it was inconvenient criticism of their policies. >> i remember about the great declaration is interviewing both you and coledorf and would we be better protecting the most vulnerable among us and letting the virus run its course more quickly getting to herd immunity. i published your essay on my

website. but what ended up happening to you on that issue among the big tech platforms? >> so shortly after we published it, google deboosted it. you couldn't even search for it. they took down the page for a week with no reason. there's another article that document this is. the tech companies, i don't know exactly the government role in this, but i can say the tech companies definitely deboosted the signal around it. but shortly after we wrote it, we had an e-mail from the head of the ih telling tony fauci there should be a takedown of the declaration. the government played a big role in this censorship effort to create this illusion there was a

consensus around their policies, when there wasn't. >> i read an essay that said this opinion is a huge blow to vital efforts to harden u.s. democracy against the threats of misinformation. you would say what to them? >> i mean, the best way to combat misinformation is by real, true speech. if the government thinks there's some idea floating around that's dangerous, combat that with speech that says and evidence that says the idea is dangerous and here's the truth. if the government is trustworthy, people will believe them. it's not possible for anyone to claim they are on mission and always wright. it's very dangerous to say that. they should engage in discussion like other normal human beings rather than using its power to suppress the conversation from happening. essentially, to issue a negative social credit score who disagree

with them. >> the internet is a fire hose of information. i think it takes effort on everybody's part to make sure we're combatting misinformation. i want the government to have a seat at that table. i think i made clear earlier it's when they get coercive and tell the tech giants they want something take down that they have crossed a line. here's some social media. stay where you are. put it on the screen and let's see what it says. during covid, many things labeled a as misinformation turned out to be true. i guess austin connolly is making your pitch. take the final word. >> it's absolutely true. on mask mandates, did they work? did lockdowns have harm, absolutely. we're seeing the case about what happened to kids. did the vaccine stop you from spreading covid, it did not. these were deemed misinformation. you have n a complicated issue,

you have to let all voices speak. having the government coerce social media companies to prevent that speech from happening worsened the kobs kwenss of the epidemic. i think more people are dead because of it. >> joe, thank you for being here. i'm sure this debate is going to continue on in the social media world as people have just heard what you said. thank you. make sure you go to smerconish.com. relative to homelessness, answer this. which is more cruel and unusual? this pertains to the oregon case now decided by the ninth circuit. finding the homeless to combat it, or the alternative of leaving them alone? a new lawsuit claims that harvard legacies are six times more likely to be admitted and given the end of affirmative action, this now constitutes a civil rights violation.

but as someone who benefitted from legacy admissions and now paying it forward, i have a different take. plus a south carolina town of a little over 3,000 inhabitants was swamped last weekend with 50,000 donald trump supporters. that's in a state with two of its own presidential in nikki haley and tim scott. what does that mean for the odds of trump getting the nomination or being elected again despite his indictments? retinol overnight means... the smoothing benefits of retinol. arare now for your whole body. plus, fast-working crepe correctorr diminishes wrinknkled skin in just two days. gold bond. champion your skin. ♪ wh you have chronic kidney disease... there are places you'd like to be.

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for months we have listened as leaders try to guess the political impact of donald trump east indictments. indictments seemingly have bolstered him thus far, at least among republicans. and the next to charge, it may only amplify husband campaign even more. in 2016, trump threw drought

thousands to rallies. last week was extraordinary. he brought in 50,000 supporters to a tiny town in south carolina. where the population is just over 3,000 people. he drew a crowd 20 times that number. this was a striking contrast to who is thought to be his biggest rival at the moment, governor desantis, who held an event in that same state last week. he brought in enough enthusiasm to fill a local activity center in north augusta in south carolina. in 2016 trump won the state with over 30% during a crowded primary season. what make this is week's crowd size even more shocking is he's now running against two locals for the gop ticket. former governor nikki haley and current senator tim scott, both held event of their own. couldn't come close to drawing what trump drew. even though that's not enough to make the state waiver in its support, he's already secured

endorsements from the governor, three congressmen and its senior senator. despite his legal woes, trump is heading the republican race effortlessly and the money doesn't lie. the former president has nearly doubled his $18.8 million from the beginng of 2023. his campaign earned $35 million in donations in the most recent quarter. voters appeared eager to join the race he hauled in $20 million in fundraising in it his first 6 weeks of campaigning. yet the latest polling shows him at 51%, desantis at 22%. trump gained support following his second indictment. in april he was polling at 46%. he's up 5 points. anit not a matter of too much competition as some proposed, as if what if the field narrows. even in a narrow two-candidate field, nbc says trump beats desantis 60 to 36. what does the wagering tell us?

joining me to talk more about it is co-founder and ceo john phillips. welcome become. your betting market for the gop nomination, it seems to resemble the current polling, but it's got trump running even stronger against delaware season tas. tell me what you see in the gop nomination fight. >> so in the republican nomination fight, it's interesting. you have trump, as you point out, with a commanding lead. desantis has done -- he had a rough launch to his campaign. he's really gone done a bit in the betting odds. it's interesting to see the second tier of republican candidates. scott and christie, all at 6% odds. and they are looking to overtake

desantis. they have a ways to go. then the other candidates in the republican side haven't registered much at all. >> on the democratic side of the aisle for that nomination, when i checked this morning, it was biden at 68%. 18%.restingly, gavin newsom at kamala harris, the vice preside. what do you e in that wager? >> biden was drifting slowly, drifting downwards. that's been arrested. he seems to be settled at 70% odds or 68% odds thimorning. newsom is interesting because newsom is not even a declared candidate can, but he's running around the country giving speeches on biden's behalf. he is a presidential candidate. you have kennedy, who i think

has some room to grow. he's at 13% odds. and it's interesting to see where his support is coming from, but kennedy could be the wild card here on issues such as other issues where the other two above him aren't cutting the mustard. the democratic and the republican races are wide open still. but there's a clear front runner on the republican and democratic side, but their loss is the gain of those below them. >> finally then, two quick slides. when you look at the election winner by personality, biden, 43, trump, 31. desantis and newsom both at 14. there had it is. i'm putting it up on the screen. wh y ask generically which party, if the democrat pty 57%, repubcan, 45. why when you ask generically are there greater odds for the

democrats than when you ask by personally ty? what's the answer? >> i do understand the question. the answer is somewhat complicated. but when they are putting their bets down, they are not saying who is going to win. they are saying who they think has room to grow. so desantis or trump at 31, if they think his odds are going to go up, they might like trump at 31. and hate him at 41. you can get in and out of the markets if you think they are overpriced or underpriced. so it doesn't necessarily correlate. >> is this just -- some value to it? >> it's predictive. the stats show the betting markets are fair for predictive than polling. >> john phillips, thank you. i appreciate it. >> thank you.

more social media reaction. what do we have? he was right. he should shoot someone on fifth avenue and not lose a vote. truly amazing. eric, at least when it comes to the nomination fight, that seems to be the case. not that it ought to be a factor, but you have to believe it's entered the mind of the fullton county da that if she indicts him, those numbers could go up even higher. time will tell. jack smith still seems to be aggressively pursuing other leads. there could be multiple indictments still to come. i want to remind you to answer this week's poll question at smerconish county. which is more cruel and unusual? finding the homeless or leaving them alone? still to come, as soon as the supreme court put an end to affirmative action in college applications, a lawsuit was filed to end legacy admissions at harvard. i get it. but t i'm wary of ending the

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sgrrvelgts now legacy college admissions from a 61-year-old white former fraternity brother. if ike a acknowledging my own stereotypes, i'm bald. in college applications, then it becomes a fresh target. a complaint was filed by lawyers for civil rights, a nonperiod of time alleging that the a admissions process violatethe civil rights act. in a pss release, nearly 70% of harvard's legacy applicants are wiet and received a boost based on their status. applicants are zefb times more likely to be eadmitted and legacies are nearly six times more likely to be admitted.

some college heads defended the practice of giving an edge to relatives of alumni as a sense of family about the school. at duke university, the campus newspaper found that 22% of the freshman class had parents or siblings who had gonthere. in march of 2022, duke's president said in response to a faculty question, we're an institution made in the duke family. the idea that you would ban legacy preferences or ban any particular factor as a consideration is troublesome. real clear education, then nyu senior wrote this. i'm not a legacy admit. my parents are blue collar workers and my dad only attended classes at a state college, but i felt the benefits of keeping leg sis around at my cool bpoe he noted that the engagement of legacies extends beyond donations. multigenerational families offer often have a stronger connection to an institution than a first

generation student who doesn't have a family connected to the institution. and he's right. i was once a legacy eadmission o lehigh, where my father obtained a masters degree and my brother graduated four years ahead of mel maine. i probably needed that boost to kpen sate for mediocre s.a.t.s. it all worked out for he. i got my act together thanks to a professor and i graduated. last month i attended reare union weekend where my own class celebrated the 39th anniversary of my graduation. my fraternity had a nice turn out. our 40th will be. that's me with my roommate of three years. here's shotgun that i observed. a high number of classmates who

were present for the 39th shared stories of their children, who similarly graduated from lehigh. yes, legacies. i was not so fortunate. none of our four children f followed in my footsteps. i oversold it. but many of my classmates with alumni children are exactly the type who come to a 39th anniversary instead of waiting for round numbers like the 40th or 50th. and guess what. they write checks. ask they conduct alumni interviews and serve as ambassadors for thaeir beloved institution. in short, they give back. that's the foundation of legacy admissions. the point is legacy eadmissions provide a life blood, financial, emotional, cultural, for colleges and universities that provide opportunities for many, including minorities. and if legacy admissions now get their time in the barrel, harm will be suffered not just by families loo that can likely

mine, but by the families of one-time beneficiaries. just when their sons and daughters might get the benefit from the family aspect of legacielegacy e admissions. that would be a mistake. joining me is sanford williams, lecture in law, receive d a bs and mba from cornell university and jd from the university of virginia school of law. thank you so much for being here. i understand that you and your wife both went to uva and so, too, your three kids. so should that be a consideration when it comes to your grandchildren? >> first, thank you for having pet me. i have three grandchildren. i would love for them to be considered. the short answer is if you asked me a week ago, i would be where you are. but now given the paradigm with

the current afirmtive action by the supreme court, looking a at what's best for me, i would the love to have the benefit. but looking at what's right for everyone, i don't see how i coulded a vo caught for legacied a madmissions when 70% are whit ask we have taken out of the equation race. >> you must not have found my commentary persuasive, which is fine. but what of the idea that legacy admissions benefit everybody now, particularly in a post affirmative action world? and the gentleman from nyu who said, i wasn't a beneficiary of legacy, but i shared some of the benefits of it because of the people who were. >> i think that's exactly right. i wasn't a beneficiary either. my children have benefitted. what you mentioned of family being part of the fabric of the school, it's totally true pre. from watching us win national championships to reveling in the fact that we have a diversity,

we have a common bond. when tragedies happen, we have a common bond. and those things tie us to the school. and also donations is the life blood. it's very important, but again, looking at the whole picture, i think it's hard to justify having legacies being a benefit shl preference. >> there's a provocative essay in "the new york times" today, he wrote there'snother aspect ofy admissions, which is that the pplwho are beneficiaries or historically have been are tied into networks. we have it. let me read. legacy ss got a leg up in the admissions process, but they were already on the path to success by virtue of being born into privilege. there's evidence that going to princeton opposed to a less

selective cohead no difference in their earnings. here's the key. one group got a big boost from going to elite schools. poor students, students of colo didn't have a gcollege degree, and that's because the colleges connected them to students born into privilege, the student that legacy preferences admit to such large numbers. in other words, like a big part of college is the connections you make and the people that you meet. now if we end legacy admissions and that network disappears, minorities, too, will be harmed because they are not getting access into those connections. >> right. that's a great point. i think i have seen that in my life and my children as well. something that's important, i think from 1970 to 2010, the black college enrollment quadrupled. so there are tons of folks who now their kids are going to school. they want to reap those benefits. it's hard for me to say to participate in this because it's

like the rug is being pulled out from under us. but i go back to the initial point. looking at the paradigm now, affirmative action served that same purpose. it's now removed. i think affirmative action was still there two weeks ago, it would be a different story. >> sanford williams, thank you. i appreciate it. >> thank you for your time. thank you for having me. i really appreciate it. >> more social media reaction. what do we have? did i persuade anyone? mediocre white man with success and status already in hand wants legacy protections to remain. what an original thought. did you even hear the case i was trying to make? i acknowledge the legacy benefits that were provided to me. but i'm paying it back. and those who go to a 39th anniversary instead of waiting for the 40th are the type that are so connected to that institution because their

grateful for what it did for them in a way that others wouldn't be. still to come, more of your best and worst social media comments. we'll fifth ygive you the final results of the poll question make sure you're registering for the free newsletter. which is more cruel and unusual? finding the homeless or leaving them alone? right now get a free footlong at subway. like the subway series menu. buy one footlong in the app, get one free. for freeee. that's what i'm talking about. order in the subway app today.

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let's see what we've established thus far this week. number one, cities need the power to deal with their homeless populations, both in the best interest of the cities and everybody else and the homeless community three number two it's okay to give a platform to the great barrington declaration and

people like jake combat them with information not with censorship and number three that donald trump had a good week politically speaking and if that's the case we ought to say so. and number four that legacy admissions need to be kept now, here is the results of the poll. 22,000, saying two thirds finding the homeless is more cruel and unusual than just leaving them alone. the ninth circuit case. catherine, what do we have in terms of social media reaction to this week's program? you just gave a megaphone to a, to what's next, how many jews actually died? i guess what, and i just gave platform to you to push back against everyone of those

things and therefore the playing surface is level, and the answer is not to say facebook, take that down, twitter, take that down, cnn, don't tell us that information, it is to combat it with information and points of view just like yours, so thank you for helping to illustrate the point i was trying to make earlier in the program. i wiwill see you here next week ouour ears connect us to the moments that matter. give them the nutrients they need with lipo. it's formulated with ingredients clinically shown to protect your ears from dizziness, ear ringing, and even hearing loss. never miss a momen with lipo flavonoid.

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