1
00:00:03,200 --> 00:00:08,000
Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.

2
00:00:10,480 --> 00:00:13,880
Speaker 1: The US Supreme Court is poised to allow abortions in

3
00:00:14,000 --> 00:00:17,759
Speaker 1: medical emergencies in Idaho. According to a copy of the

4
00:00:17,800 --> 00:00:21,400
Speaker 1: opinion that was briefly posted on the court's website and

5
00:00:21,480 --> 00:00:25,680
Speaker 1: obtained by Bloomberg Law exclusively, the Court is voting six

6
00:00:25,760 --> 00:00:29,360
Speaker 1: to three to reinstate a lower court order that had

7
00:00:29,400 --> 00:00:34,360
Speaker 1: insured hospitals in Idaho could perform emergency abortions to protect

8
00:00:34,440 --> 00:00:38,400
Speaker 1: the health of the mother, despite Idaho's strict law allowing

9
00:00:38,440 --> 00:00:41,600
Speaker 1: abortions only when the life of the mother is in danger.

10
00:00:42,120 --> 00:00:44,400
Speaker 1: In the copy of the opinion, the Court as a

11
00:00:44,440 --> 00:00:48,600
Speaker 1: whole doesn't explain its decision, saying the appeals are being

12
00:00:48,680 --> 00:00:53,280
Speaker 1: dismissed as improvidently granted. That means the Court is not

13
00:00:53,400 --> 00:00:56,680
Speaker 1: resolving the core issues in the case. Joining me is

14
00:00:56,680 --> 00:01:00,920
Speaker 1: Bloomberg New Supreme Court reporter Greg Storr So, Greg explain

15
00:01:01,000 --> 00:01:04,160
Speaker 1: how we obtained a copy of this decision, which isn't

16
00:01:04,200 --> 00:01:07,760
Speaker 1: necessarily the final ruling since the Court hasn't released it

17
00:01:07,880 --> 00:01:08,840
Speaker 1: yet yet.

18
00:01:08,959 --> 00:01:12,120
Speaker 2: It just briefly appeared on the Court's website around the

19
00:01:12,160 --> 00:01:14,960
Speaker 2: time it was releasing other opinions, and then it was

20
00:01:15,040 --> 00:01:18,520
Speaker 2: quickly taken down. The court has confirmed that something was

21
00:01:18,880 --> 00:01:21,959
Speaker 2: indvertently put on lines. As it's not a final decision,

22
00:01:22,440 --> 00:01:26,000
Speaker 2: so we don't know for sure that something here may

23
00:01:26,040 --> 00:01:29,560
Speaker 2: not change. It is possible that one or more justices

24
00:01:29,640 --> 00:01:33,319
Speaker 2: wanted to rethink something. But by all appearances, it looks

25
00:01:33,319 --> 00:01:36,440
Speaker 2: as though the court is going to allow emergency abortions

26
00:01:36,440 --> 00:01:37,360
Speaker 2: to happen in Idaho.

27
00:01:37,880 --> 00:01:41,000
Speaker 1: This is sort of a non decision. I mean, they're

28
00:01:41,040 --> 00:01:45,120
Speaker 1: dismissing it as improvidently granted. Explain what that means.

29
00:01:45,640 --> 00:01:48,760
Speaker 2: Yeah, that essentially means we shouldn't have taken this case

30
00:01:48,880 --> 00:01:51,440
Speaker 2: or in this case, a concurring opinion by Justice Barrett

31
00:01:51,480 --> 00:01:54,720
Speaker 2: suggested things had changed since we granted it, and so

32
00:01:54,760 --> 00:01:57,760
Speaker 2: it no longer gives us the opportunity to resolve the

33
00:01:57,800 --> 00:02:00,360
Speaker 2: issue we thought we were going to resolve. But the

34
00:02:00,400 --> 00:02:03,680
Speaker 2: other half of this decision, they dismissed the appeals, but

35
00:02:03,720 --> 00:02:06,880
Speaker 2: they also lifted a stay they had put in place

36
00:02:06,960 --> 00:02:10,360
Speaker 2: back in January, and the stay blocked the lower court

37
00:02:10,400 --> 00:02:14,040
Speaker 2: injunction that had said emergency abortions are allowed to happen

38
00:02:14,200 --> 00:02:18,320
Speaker 2: in Idaho. And so that actually does have some significance

39
00:02:18,320 --> 00:02:21,840
Speaker 2: and that is what's brought about the sharply worded dissenting opinion,

40
00:02:22,919 --> 00:02:23,560
Speaker 2: so greg.

41
00:02:23,400 --> 00:02:26,320
Speaker 1: The court as a whole doesn't explain its decision. And

42
00:02:26,360 --> 00:02:30,760
Speaker 1: you have this three three three split, the three liberals

43
00:02:30,760 --> 00:02:35,800
Speaker 1: and the majority. The three most conservative justice is in dissent,

44
00:02:36,639 --> 00:02:39,120
Speaker 1: and then the three justices sort of in the middle

45
00:02:39,639 --> 00:02:43,240
Speaker 1: concurring with the liberals. Are the three liberals the only

46
00:02:43,280 --> 00:02:48,000
Speaker 1: ones who said that this federal law MTALA requires hospitals

47
00:02:48,040 --> 00:02:52,200
Speaker 1: to provide abortions that Idaho's law prohibits, and when that's so,

48
00:02:52,520 --> 00:02:54,040
Speaker 1: Idaho's law is preempted.

49
00:02:54,560 --> 00:02:56,720
Speaker 2: Yes, they said that they were in the majority, but

50
00:02:56,760 --> 00:02:59,040
Speaker 2: they didn't form the majority because it's only three of them.

51
00:02:59,120 --> 00:03:01,960
Speaker 2: You're right, the other justices, the kind of the justices

52
00:03:02,000 --> 00:03:06,120
Speaker 2: in the middle, Barrett, Kavanaugh, and Roberts didn't directly say

53
00:03:06,160 --> 00:03:08,560
Speaker 2: how they would rule on that issue. And then the

54
00:03:08,639 --> 00:03:11,840
Speaker 2: three dissenting justices made pretty clear that they would if

55
00:03:11,840 --> 00:03:14,480
Speaker 2: they had a chance, say that this law and TALA

56
00:03:14,520 --> 00:03:17,359
Speaker 2: does not apply here in Idaho can fully enforce its

57
00:03:17,360 --> 00:03:18,240
Speaker 2: abortion bans.

58
00:03:18,440 --> 00:03:20,840
Speaker 1: What does Alito's dissent stand.

59
00:03:20,560 --> 00:03:23,800
Speaker 2: For, Well, it stands for the notion that he really

60
00:03:23,800 --> 00:03:26,560
Speaker 2: wanted to decide this case and he wanted the court

61
00:03:26,639 --> 00:03:30,520
Speaker 2: to say that and TALA doesn't apply in this situation,

62
00:03:30,639 --> 00:03:33,880
Speaker 2: that PALA doesn't tell a state that it has to

63
00:03:33,919 --> 00:03:37,880
Speaker 2: allow a certain medical procedure, in this case abortion. But

64
00:03:37,960 --> 00:03:40,560
Speaker 2: instead the court backed out of that. Now one justice

65
00:03:40,560 --> 00:03:44,320
Speaker 2: we haven't mentioned, Justice Kitazi Brown Jackson, he sort of agreed, Yeah,

66
00:03:44,360 --> 00:03:46,080
Speaker 2: I wish we would have decided this case too, but

67
00:03:46,120 --> 00:03:48,400
Speaker 2: she would have come out the other way. She dissented

68
00:03:48,480 --> 00:03:51,120
Speaker 2: from the decision to dismiss the case, but would have

69
00:03:51,200 --> 00:03:53,480
Speaker 2: ruled the other way from Justice Alito, Yeah, I.

70
00:03:53,440 --> 00:03:56,840
Speaker 1: Mean she said so. To be clear, today's decision is

71
00:03:56,960 --> 00:04:00,640
Speaker 1: not a victory for pregnant patients in Idaho. While this

72
00:04:00,760 --> 00:04:05,559
Speaker 1: court dawdles and the country waits, pregnant people experiencing emergency

73
00:04:05,600 --> 00:04:09,840
Speaker 1: medical conditions remain in a precarious position as their doctors

74
00:04:09,840 --> 00:04:12,680
Speaker 1: are kept in the dark about what the law requires.

75
00:04:13,200 --> 00:04:16,479
Speaker 1: Do you think they didn't reach that because they couldn't

76
00:04:16,520 --> 00:04:18,560
Speaker 1: get five votes either way.

77
00:04:20,040 --> 00:04:23,000
Speaker 2: It's pretty hard to say why they reached this decision.

78
00:04:23,080 --> 00:04:27,160
Speaker 2: I mean, it was cleared during the arguments that some justices,

79
00:04:27,279 --> 00:04:31,440
Speaker 2: particularly Justice Barrett Justice Kavanaugh, were sort of less clear

80
00:04:31,480 --> 00:04:34,640
Speaker 2: about what was really at stake, what the difference what

81
00:04:35,080 --> 00:04:39,120
Speaker 2: it was that Idaho lah would ban that federal law

82
00:04:39,320 --> 00:04:42,279
Speaker 2: would allow. So that seemed to be why they wanted

83
00:04:42,320 --> 00:04:45,360
Speaker 2: to back out of the case. It is because the

84
00:04:45,400 --> 00:04:47,880
Speaker 2: Court as a whole doesn't give an explanation. It's a

85
00:04:47,880 --> 00:04:51,080
Speaker 2: little hard to sort of figure out the entirety of

86
00:04:51,120 --> 00:04:51,640
Speaker 2: what happened.

87
00:04:52,120 --> 00:04:55,960
Speaker 1: It really is the concurrences, the justices in the middle.

88
00:04:56,360 --> 00:04:58,960
Speaker 1: What did they say had changed to make them dismiss

89
00:04:59,040 --> 00:05:01,640
Speaker 1: this as evidently granted, they.

90
00:05:01,640 --> 00:05:03,680
Speaker 2: Said a couple things had changed. One they said that

91
00:05:04,080 --> 00:05:06,800
Speaker 2: Idaho law had had changed and it was not a

92
00:05:06,800 --> 00:05:09,159
Speaker 2: wh Supreme Court decision. There were some things that the

93
00:05:09,160 --> 00:05:13,000
Speaker 2: ODA host listener General said in the brief that made

94
00:05:13,080 --> 00:05:16,600
Speaker 2: them think that maybe they weren't banning as many abortions

95
00:05:16,640 --> 00:05:19,920
Speaker 2: as as perhaps they originally fought. And they also said

96
00:05:19,960 --> 00:05:23,200
Speaker 2: that the United States, the Biden administration, they clarified that

97
00:05:23,640 --> 00:05:26,839
Speaker 2: Amtala doesn't reach quite as far as maybe some of

98
00:05:26,839 --> 00:05:30,320
Speaker 2: them them thought it did originally. Now I think, you know,

99
00:05:30,600 --> 00:05:33,640
Speaker 2: both of those assertions, you know, maybe could be disputed,

100
00:05:33,680 --> 00:05:36,799
Speaker 2: but that's that's at least the way those three justices

101
00:05:36,839 --> 00:05:37,120
Speaker 2: saw it.

102
00:05:37,600 --> 00:05:42,720
Speaker 1: I remember in the oral arguments Elena Kagan being very passionate,

103
00:05:42,960 --> 00:05:48,040
Speaker 1: and in her opinion here she spends some time talking

104
00:05:48,080 --> 00:05:51,719
Speaker 1: about how this has affected women who have needed abortions

105
00:05:51,760 --> 00:05:52,360
Speaker 1: in Idaho.

106
00:05:52,880 --> 00:05:55,600
Speaker 2: Yeah, and there's a lot of briefing on that, and

107
00:05:55,920 --> 00:05:58,719
Speaker 2: people who were you, I talked to you before the

108
00:05:58,839 --> 00:06:02,520
Speaker 2: argument talked about the effect it was having on both

109
00:06:02,560 --> 00:06:06,200
Speaker 2: patients and doctors. Doctors in some cases saying we need

110
00:06:06,240 --> 00:06:08,039
Speaker 2: to send you to another state. We need to airlift

111
00:06:08,080 --> 00:06:10,200
Speaker 2: you to another state because we don't think we can

112
00:06:10,480 --> 00:06:14,600
Speaker 2: perform that abortion that needed abortion here without running the

113
00:06:14,680 --> 00:06:17,560
Speaker 2: risks that we're going to be prosecuted. And also patients

114
00:06:17,600 --> 00:06:21,000
Speaker 2: who are told you're not quite at that level yet

115
00:06:21,040 --> 00:06:23,120
Speaker 2: where your life is at risk, it's only your health

116
00:06:23,200 --> 00:06:25,760
Speaker 2: that's at risk, so we need to essentially need to

117
00:06:25,800 --> 00:06:28,960
Speaker 2: wait until things get worse. And you know, those are

118
00:06:29,000 --> 00:06:32,839
Speaker 2: the things that both Justice Kagan and Justice Jackson talked

119
00:06:32,839 --> 00:06:35,680
Speaker 2: about in their opinions for why it was really urgent

120
00:06:35,760 --> 00:06:37,560
Speaker 2: that that's the court do what it did.

121
00:06:38,360 --> 00:06:41,200
Speaker 1: So what happens now this goes back to which court

122
00:06:41,320 --> 00:06:43,480
Speaker 1: and litigation starts up again.

123
00:06:44,120 --> 00:06:46,680
Speaker 2: Yeah, so this will now presuming this opinion becomes final,

124
00:06:46,680 --> 00:06:49,280
Speaker 2: and even find it's not actually final, But what would

125
00:06:49,279 --> 00:06:50,839
Speaker 2: happen would be that it would then go before the

126
00:06:50,920 --> 00:06:54,120
Speaker 2: Ninth Circuit. There's this preliminary injunction that a district judge

127
00:06:54,279 --> 00:06:56,679
Speaker 2: has put in place. That's the thing that is allowing

128
00:06:57,040 --> 00:07:00,400
Speaker 2: margency abortions right now, and that's on appeal. The Ninth

129
00:07:00,400 --> 00:07:03,440
Speaker 2: Circuit will will decide that we could well get this

130
00:07:03,560 --> 00:07:05,680
Speaker 2: coming back to the Supreme Court. We could also see

131
00:07:05,680 --> 00:07:08,440
Speaker 2: there's another case involving Texas basically the same issue that

132
00:07:08,720 --> 00:07:11,600
Speaker 2: could reach the Supreme Court as well. So it's possible

133
00:07:11,640 --> 00:07:14,200
Speaker 2: that there will be almost certainly will be another attempt

134
00:07:14,240 --> 00:07:16,240
Speaker 2: to get the Supreme Court to resolve this issue.

135
00:07:16,400 --> 00:07:21,120
Speaker 1: Yeah, and Justice Jackson mentioned that the Fifth Circuit that

136
00:07:21,200 --> 00:07:23,680
Speaker 1: case was likely to come before the Court, and that's

137
00:07:23,760 --> 00:07:25,880
Speaker 1: one of the reasons why she said we should resolve this.

138
00:07:26,600 --> 00:07:28,920
Speaker 2: Yeah, you know, this is just a temporary order. It

139
00:07:29,040 --> 00:07:32,200
Speaker 2: is certainly from an abortion rights standpoint, is certainly a win.

140
00:07:32,520 --> 00:07:34,080
Speaker 2: Folks on that side can breathe a bit of a

141
00:07:34,080 --> 00:07:36,320
Speaker 2: sigh of a relief. But I think there's a broad

142
00:07:36,360 --> 00:07:39,520
Speaker 2: recognition or there will be again when it's finalized, that

143
00:07:39,640 --> 00:07:42,720
Speaker 2: the Court is not resolving the ultimate issue in their favor.

144
00:07:43,400 --> 00:07:47,240
Speaker 1: This is the Court's second case. This term involving abortion.

145
00:07:47,760 --> 00:07:51,160
Speaker 1: We had the case involving the abortion pill if a pristone,

146
00:07:51,440 --> 00:07:54,120
Speaker 1: and in that case too, they didn't decide the merits

147
00:07:54,160 --> 00:07:56,640
Speaker 1: of the case, and it's likely going to come back

148
00:07:56,640 --> 00:07:59,960
Speaker 1: to the Supreme Court. They issued a procedural ruling saying

149
00:08:00,000 --> 00:08:03,680
Speaker 1: and there was no standing here. Again, another procedural ruling.

150
00:08:03,960 --> 00:08:07,240
Speaker 1: But what I noticed today, Greg, is that usually in

151
00:08:07,360 --> 00:08:11,880
Speaker 1: six to three decisions, it's the six conservatives versus the

152
00:08:11,960 --> 00:08:16,120
Speaker 1: three liberals. But this opinion, if it's a final opinion,

153
00:08:16,560 --> 00:08:20,960
Speaker 1: is the third one today where the hardline conservatives are

154
00:08:20,960 --> 00:08:21,800
Speaker 1: the three in descent.

155
00:08:22,320 --> 00:08:27,440
Speaker 2: Yeah, that sort of block of Barrett, Kavanaugh, Roberts you know,

156
00:08:27,560 --> 00:08:29,520
Speaker 2: have been you know many times like kind of a

157
00:08:29,560 --> 00:08:33,360
Speaker 2: centrist block, and they swing one way or another. Those

158
00:08:33,400 --> 00:08:37,200
Speaker 2: three justices in particular, tend to be reluctant to move

159
00:08:37,480 --> 00:08:40,120
Speaker 2: as quickly as some of the more conservative colleagues, whereas

160
00:08:40,280 --> 00:08:44,280
Speaker 2: where you're referring to Alito, Thomas and Gorsich are much

161
00:08:44,320 --> 00:08:48,439
Speaker 2: more willing to issue bold rulings that make a significant

162
00:08:48,520 --> 00:08:49,320
Speaker 2: change to the law.

163
00:08:50,000 --> 00:08:52,440
Speaker 1: Why did the Court take this case? Was it a

164
00:08:52,480 --> 00:08:54,240
Speaker 1: situation where they had to take it?

165
00:08:54,679 --> 00:08:56,520
Speaker 2: They were not forced to take it. In fact, It

166
00:08:56,559 --> 00:08:58,840
Speaker 2: was very unusual the way they did take it. This

167
00:08:59,120 --> 00:09:02,719
Speaker 2: was in the next of an emergency application. They were

168
00:09:02,760 --> 00:09:06,240
Speaker 2: being asked to block this lower court decision. Idaho and

169
00:09:06,600 --> 00:09:10,000
Speaker 2: Republicans in the state were asking them to block this

170
00:09:10,080 --> 00:09:13,520
Speaker 2: lower court decision, and the Supreme Court said, yes, we'll

171
00:09:13,520 --> 00:09:15,719
Speaker 2: block the lower court decision. And in addition, we're going

172
00:09:15,760 --> 00:09:18,400
Speaker 2: to hear arguments in this case without even waiting for

173
00:09:18,440 --> 00:09:20,800
Speaker 2: the Ninth Circuit. And so, now, what's what's going to

174
00:09:20,800 --> 00:09:23,080
Speaker 2: happen is it kind of goes back to the normal course,

175
00:09:23,120 --> 00:09:25,280
Speaker 2: which is the Ninth Circuit. We'll hear at first, and

176
00:09:25,320 --> 00:09:27,400
Speaker 2: then maybe it will come back to the Supreme Court.

177
00:09:27,679 --> 00:09:31,400
Speaker 1: And Alito said something like, what's changed since we issued

178
00:09:31,440 --> 00:09:34,400
Speaker 1: the temporary stay. Now, this is the second time in

179
00:09:34,480 --> 00:09:38,440
Speaker 1: recent years that an abortion decision has been leaked, and

180
00:09:38,600 --> 00:09:43,960
Speaker 1: last time it was deliberately leaked to Politico the Dobbs decision.

181
00:09:44,360 --> 00:09:46,320
Speaker 1: Does this cause a problem for the court.

182
00:09:46,840 --> 00:09:48,920
Speaker 2: This is a very different sort of thing. I don't know,

183
00:09:48,960 --> 00:09:52,480
Speaker 2: we don't know, you know, how the Dobs decision was leaked.

184
00:09:52,559 --> 00:09:55,640
Speaker 2: This was more somebody. It seems like they have messed up.

185
00:09:55,960 --> 00:09:58,280
Speaker 2: So it's a different sort of problem. There had been

186
00:09:58,320 --> 00:10:01,080
Speaker 2: issues like this in the past, going a little bit

187
00:10:01,080 --> 00:10:04,040
Speaker 2: further back, where things were posted a bit earlier than

188
00:10:04,080 --> 00:10:06,520
Speaker 2: they were supposed to be posted. So this is perhaps

189
00:10:06,640 --> 00:10:09,160
Speaker 2: more like those in terms of how it went about.

190
00:10:09,320 --> 00:10:12,320
Speaker 2: I would assume the Court will figure out what happened

191
00:10:12,360 --> 00:10:15,199
Speaker 2: here and try to take steps to keep it from

192
00:10:15,240 --> 00:10:20,040
Speaker 2: happening again. But we've seen that human error happens, and technology,

193
00:10:20,080 --> 00:10:23,400
Speaker 2: even what it is, sometimes information gets out before the

194
00:10:23,400 --> 00:10:24,120
Speaker 2: court wants it to.

195
00:10:24,600 --> 00:10:27,560
Speaker 1: The Court never did say what happened with the leak

196
00:10:27,640 --> 00:10:32,120
Speaker 1: of the Dobbs decision, saying the investigation didn't turn anything up.

197
00:10:32,200 --> 00:10:35,600
Speaker 1: We'll see if we hear more about this, and tomorrow

198
00:10:35,679 --> 00:10:38,319
Speaker 1: and Friday, two more opinion days to keep you busy, Greg,

199
00:10:38,720 --> 00:10:42,199
Speaker 1: Thanks so much. That's Bloomberg New Supreme Court reporter Greg

200
00:10:42,280 --> 00:10:45,560
Speaker 1: Store coming up next on the Bloomberg Law Show. The

201
00:10:45,640 --> 00:10:49,280
Speaker 1: Supreme Court clears the way for the Biden administration to

202
00:10:49,360 --> 00:10:53,560
Speaker 1: communicate freely with social media companies in an election year,

203
00:10:53,679 --> 00:10:57,240
Speaker 1: ruling that bolsters the government's ability to seek removal of

204
00:10:57,280 --> 00:11:01,480
Speaker 1: what official see as misinformation. June Grosso and you're listening

205
00:11:01,480 --> 00:11:06,480
Speaker 1: to Bloomberg. The Supreme Court today tossed out court imposed

206
00:11:06,520 --> 00:11:11,040
Speaker 1: restrictions on contacts by the White House and several federal agencies.

207
00:11:11,840 --> 00:11:15,280
Speaker 1: The decision clears the way for the Biden administration to

208
00:11:15,360 --> 00:11:19,520
Speaker 1: communicate freely with social media companies in an election year,

209
00:11:19,640 --> 00:11:23,400
Speaker 1: ruling that bolsters the government's ability to seek removal of

210
00:11:23,400 --> 00:11:27,680
Speaker 1: what officials see as misinformation. In the six to three decision,

211
00:11:27,960 --> 00:11:31,680
Speaker 1: Justice Amy Coney Barrett wrote that the justices didn't need

212
00:11:31,720 --> 00:11:35,160
Speaker 1: to resolve the First Amendment issues in the case because

213
00:11:35,200 --> 00:11:39,040
Speaker 1: the challengers here lacked legal standing to press their lawsuit

214
00:11:39,040 --> 00:11:42,040
Speaker 1: against the federal government. Joining me is Eric Goleman, a

215
00:11:42,040 --> 00:11:45,480
Speaker 1: professor at Santa Clara University and co director of the

216
00:11:45,520 --> 00:11:48,800
Speaker 1: school's High Tech Law Institute. Eric tell us about this

217
00:11:48,920 --> 00:11:52,440
Speaker 1: case brought by two Republican led states and five of

218
00:11:52,480 --> 00:11:53,239
Speaker 1: their residents.

219
00:11:54,200 --> 00:11:58,320
Speaker 3: The case is about the government's constant dialogue with internet

220
00:11:58,400 --> 00:12:03,400
Speaker 3: services over their content standards, and in particular, the Biden

221
00:12:03,440 --> 00:12:08,560
Speaker 3: administration was constantly talking with social media services about their

222
00:12:08,679 --> 00:12:13,920
Speaker 3: content moderation of COVID related posts and election related posts,

223
00:12:14,200 --> 00:12:18,440
Speaker 3: and the planeiffs alleged that those conversations led to their

224
00:12:18,559 --> 00:12:22,360
Speaker 3: content being censored and they saw it redress in the courts.

225
00:12:23,080 --> 00:12:26,839
Speaker 1: The decision was six to three, with a change here

226
00:12:26,920 --> 00:12:30,760
Speaker 1: the three most conservative justices in the minority. What does

227
00:12:30,800 --> 00:12:32,320
Speaker 1: this decision stand for?

228
00:12:32,920 --> 00:12:35,960
Speaker 3: This decision turns ultimately on what I think is best

229
00:12:35,960 --> 00:12:40,400
Speaker 3: described as a technical or procedural question, but it's actually

230
00:12:40,440 --> 00:12:43,680
Speaker 3: really important. It turns on whether or not the planets

231
00:12:43,760 --> 00:12:47,200
Speaker 3: have the right to access the courthouse at all. And

232
00:12:47,240 --> 00:12:50,720
Speaker 3: it might sound weird, but plantiffts don't just automatically give

233
00:12:50,760 --> 00:12:52,360
Speaker 3: the right to show up in court and have key

234
00:12:52,360 --> 00:12:55,839
Speaker 3: courts here their cases, they have to show that they

235
00:12:55,880 --> 00:12:59,600
Speaker 3: have quotes standing, that they have a problem that the

236
00:12:59,640 --> 00:13:03,240
Speaker 3: court's designed to solve. And if they can't show that

237
00:13:03,360 --> 00:13:06,440
Speaker 3: standing them, the court can't hear the case. And so

238
00:13:06,920 --> 00:13:10,320
Speaker 3: the majority of this case said that the plaintiffs legend

239
00:13:10,360 --> 00:13:14,439
Speaker 3: that their content has been moderated, lacked standing to complain

240
00:13:14,480 --> 00:13:18,040
Speaker 3: about it, so they didn't meet the procedural requirements to

241
00:13:18,080 --> 00:13:18,760
Speaker 3: get into court.

242
00:13:19,120 --> 00:13:22,679
Speaker 1: Justice Amy Cony Barrett wrote, the plaintiffs, without any concrete

243
00:13:22,760 --> 00:13:26,360
Speaker 1: link between their injuries and the defendant's conduct, asked us

244
00:13:26,400 --> 00:13:29,640
Speaker 1: to conduct a review of the year's long communications between

245
00:13:29,679 --> 00:13:33,920
Speaker 1: dozens of federal officials across different agencies with different social

246
00:13:34,000 --> 00:13:38,600
Speaker 1: media platforms about different topics. Does it tell the government

247
00:13:39,040 --> 00:13:43,000
Speaker 1: how they can now interact with social media companies. Is

248
00:13:43,040 --> 00:13:44,480
Speaker 1: there any guidance there at all?

249
00:13:45,000 --> 00:13:47,959
Speaker 3: The Court didn't get to the substant question of whether

250
00:13:48,080 --> 00:13:51,440
Speaker 3: or not the conversations taking place between the government and

251
00:13:51,520 --> 00:13:56,080
Speaker 3: the Internet services was in fact censorial, and I think

252
00:13:56,280 --> 00:13:59,680
Speaker 3: many people expected the Court to address that substant question.

253
00:14:00,160 --> 00:14:04,479
Speaker 3: But because the Court took the procedural question and resolved it,

254
00:14:04,480 --> 00:14:08,199
Speaker 3: it dodged the substant question. We don't actually know where

255
00:14:08,240 --> 00:14:12,079
Speaker 3: the line's going to be drawn about those government service dialogue.

256
00:14:12,400 --> 00:14:16,160
Speaker 1: The Court seems to be dodging quite a bit this term,

257
00:14:16,160 --> 00:14:18,800
Speaker 1: and maybe they'll even be more. I mean, they dodged

258
00:14:19,000 --> 00:14:23,760
Speaker 1: the main issue about MIFA pristone by going to standing.

259
00:14:24,120 --> 00:14:25,560
Speaker 1: So is it a way for them to get a

260
00:14:25,560 --> 00:14:31,120
Speaker 1: majority without having to address so many controversial issues in

261
00:14:31,200 --> 00:14:31,920
Speaker 1: one term.

262
00:14:32,360 --> 00:14:37,280
Speaker 3: It's definitely a frustrating moment for the parties to not

263
00:14:37,320 --> 00:14:39,960
Speaker 3: get the answers to their court question and to have

264
00:14:40,160 --> 00:14:43,920
Speaker 3: the Court and the conversation on what might be considered

265
00:14:43,920 --> 00:14:48,600
Speaker 3: a quote technicality. Having said that, standing is a really

266
00:14:48,600 --> 00:14:52,600
Speaker 3: important doctrine and it is entirely appropriate for the Supreme

267
00:14:52,680 --> 00:14:56,120
Speaker 3: Court to address the standing issue and to conclude that

268
00:14:56,200 --> 00:15:00,000
Speaker 3: standing was lacking. Now, what will likely happen this came

269
00:15:00,160 --> 00:15:03,120
Speaker 3: that the planners will file a new complaint where they

270
00:15:03,160 --> 00:15:06,040
Speaker 3: will try to address the standing issue, and ultimately it

271
00:15:06,080 --> 00:15:09,000
Speaker 3: seems likely that the substant question that sedition in this

272
00:15:09,080 --> 00:15:11,600
Speaker 3: case will come back to the Supreme Court. So they

273
00:15:11,680 --> 00:15:14,440
Speaker 3: might have dodged the question for today, but they may

274
00:15:14,480 --> 00:15:18,040
Speaker 3: not dodge it in the future. But even the dodge

275
00:15:18,080 --> 00:15:22,160
Speaker 3: today still has value because it helps people understand that

276
00:15:22,480 --> 00:15:24,880
Speaker 3: not everyone gets into the courthouse. You have to put

277
00:15:24,920 --> 00:15:27,560
Speaker 3: this story together in a way that the law recognizes.

278
00:15:28,440 --> 00:15:32,840
Speaker 1: So the dissenters Justice Samuel Alito, joined by Justices Clarence

279
00:15:32,880 --> 00:15:35,880
Speaker 1: Thomas and Neil Gorsich. He dubbed the case one of

280
00:15:35,920 --> 00:15:39,040
Speaker 1: the most important free speech cases to reach this Court

281
00:15:39,120 --> 00:15:41,920
Speaker 1: in years, and he called the conduct of the official

282
00:15:42,000 --> 00:15:47,440
Speaker 1: suit in the case unconstitutional, coercive, and dangerous. What do

283
00:15:47,480 --> 00:15:49,720
Speaker 1: you make of the dissent? Is this a really important

284
00:15:49,720 --> 00:15:51,600
Speaker 1: free speech case that the court is dugged?

285
00:15:52,960 --> 00:15:55,720
Speaker 3: Well, it depends on how you think about the conversations

286
00:15:55,720 --> 00:15:59,600
Speaker 3: that take place between the government and the internet services.

287
00:16:00,120 --> 00:16:03,720
Speaker 3: If you view those conversations as an attempt of the

288
00:16:03,760 --> 00:16:07,320
Speaker 3: government to impose an orthodoxy on how we talk to

289
00:16:07,360 --> 00:16:11,520
Speaker 3: each other line, then you can view all the government

290
00:16:11,640 --> 00:16:16,520
Speaker 3: dialogue with services as a massive censorship engine, and that

291
00:16:16,600 --> 00:16:19,320
Speaker 3: sounds pretty troubling to me. If you view those dialogues

292
00:16:19,360 --> 00:16:23,600
Speaker 3: as something else, like the fact that governments are constantly

293
00:16:23,920 --> 00:16:27,640
Speaker 3: encouraging the private sector to think about what they're doing,

294
00:16:27,920 --> 00:16:32,520
Speaker 3: improve their practices, to consider values that might not be obvious,

295
00:16:32,920 --> 00:16:36,000
Speaker 3: then those conversations are not menacing at all. In fact,

296
00:16:36,040 --> 00:16:38,840
Speaker 3: they're really really important, certainly when it comes to things

297
00:16:38,880 --> 00:16:42,360
Speaker 3: like ending the pandemic. Anything the government can do to

298
00:16:42,440 --> 00:16:45,640
Speaker 3: end the pandemic quicker is a win for society, and

299
00:16:45,720 --> 00:16:48,760
Speaker 3: so that doesn't sound necessarily like censorship. That might very

300
00:16:48,760 --> 00:16:51,080
Speaker 3: well be the kind of thing we want governments to do.

301
00:16:51,800 --> 00:16:55,280
Speaker 3: So I think that the real difference between the majority

302
00:16:55,480 --> 00:16:59,960
Speaker 3: and the descent was how specific do the planoffs need

303
00:17:00,080 --> 00:17:03,600
Speaker 3: to be? And the the sense view was all you

304
00:17:03,600 --> 00:17:05,760
Speaker 3: have to tell me is that the government's leaning on

305
00:17:05,880 --> 00:17:08,880
Speaker 3: the services and that sounds good enough to me, and

306
00:17:08,920 --> 00:17:12,159
Speaker 3: the majority said no, you actually have to show the

307
00:17:12,200 --> 00:17:15,480
Speaker 3: government was leaning on services in this way at this time,

308
00:17:15,840 --> 00:17:18,000
Speaker 3: in a way that hurt you. And so I think

309
00:17:18,040 --> 00:17:20,760
Speaker 3: that the majority and Descent haven't even gone to the

310
00:17:20,840 --> 00:17:23,280
Speaker 3: senstive questions yet in a way where we can see

311
00:17:23,320 --> 00:17:25,040
Speaker 3: what they actually disagree about those.

312
00:17:25,040 --> 00:17:28,199
Speaker 1: And in Justice Alito's descent, he says the Court is

313
00:17:28,400 --> 00:17:31,679
Speaker 1: shirking its duty, something you also indicated in the Idaho

314
00:17:31,760 --> 00:17:32,600
Speaker 1: abortion case.

315
00:17:33,040 --> 00:17:36,040
Speaker 3: To me, I think that it's unfair to criticize this

316
00:17:36,119 --> 00:17:38,600
Speaker 3: opinion as the Court not wanting to deal with the

317
00:17:38,600 --> 00:17:42,520
Speaker 3: substance issues, because I think standing is so important to

318
00:17:42,600 --> 00:17:47,000
Speaker 3: the overall well functioning nature of our court system that

319
00:17:47,440 --> 00:17:51,480
Speaker 3: we have to respect this procedural hurdle. And if the

320
00:17:51,520 --> 00:17:54,840
Speaker 3: plaintiffs can't even get over that procedural hurdle, they don't

321
00:17:54,880 --> 00:17:57,560
Speaker 3: deserve the right to get the substance answered. So, in

322
00:17:57,600 --> 00:17:59,840
Speaker 3: my sense, I think that's a little bit unfair for

323
00:18:00,119 --> 00:18:04,399
Speaker 3: LEDO to cast some shade on the majority dodging of

324
00:18:04,440 --> 00:18:06,440
Speaker 3: the question, because in a sense, actually I think they're

325
00:18:06,480 --> 00:18:09,040
Speaker 3: answering a really important question that we have to answer

326
00:18:09,080 --> 00:18:11,120
Speaker 3: before we get to other important questions.

327
00:18:11,480 --> 00:18:14,600
Speaker 1: So, in light of this opinion and the fact that

328
00:18:14,720 --> 00:18:17,480
Speaker 1: you know there's no guidance in here, does this mean

329
00:18:17,560 --> 00:18:21,440
Speaker 1: that the Biden administration is free to communicate with social

330
00:18:21,480 --> 00:18:27,320
Speaker 1: media companies to remove misinformation disinformation prior to the election.

331
00:18:28,119 --> 00:18:31,000
Speaker 3: I guess I wouldn't phrase it that way. This particular

332
00:18:31,040 --> 00:18:34,480
Speaker 3: case involves the Biden administration's conversations with their net services,

333
00:18:34,800 --> 00:18:38,800
Speaker 3: but it's not a Biden administration problem. Trump's administration had

334
00:18:38,840 --> 00:18:42,000
Speaker 3: dialogues within net services, and if Trump gets back in

335
00:18:42,080 --> 00:18:46,320
Speaker 3: office in twenty twenty five, that dialogue will resume. It's

336
00:18:46,359 --> 00:18:50,560
Speaker 3: a government private sector conversation that's taking place, and that

337
00:18:50,680 --> 00:18:53,159
Speaker 3: government isn't just the Biden administration. It takes place at

338
00:18:53,200 --> 00:18:56,120
Speaker 3: the state level, at the local level, takes place from

339
00:18:56,119 --> 00:18:59,800
Speaker 3: water boards to school districts. All the governments are constantly

340
00:18:59,800 --> 00:19:03,439
Speaker 3: talking with social media about their particular concerns. So I

341
00:19:03,480 --> 00:19:05,560
Speaker 3: don't see it as a Biden administration issue. I see

342
00:19:05,560 --> 00:19:09,040
Speaker 3: it as a government private sector issue. Now, having said that,

343
00:19:09,280 --> 00:19:12,080
Speaker 3: we don't get any answers about when the government overreaches

344
00:19:12,119 --> 00:19:16,560
Speaker 3: those conversations. Though we did get some insights from a

345
00:19:16,800 --> 00:19:21,320
Speaker 3: Supreme Court opinion of months ago, the Nra versus Volo case,

346
00:19:21,680 --> 00:19:25,359
Speaker 3: where the Supreme Court said there are times at which

347
00:19:25,880 --> 00:19:30,919
Speaker 3: issuing an instruction about speech coupled with a very clear

348
00:19:31,080 --> 00:19:36,440
Speaker 3: threat of punishment is unconstitutional. That's censorship. And so we

349
00:19:36,560 --> 00:19:39,760
Speaker 3: got more substant answers I think a month ago, and

350
00:19:40,200 --> 00:19:43,040
Speaker 3: that plus the standing issue actually gives the governments a

351
00:19:43,040 --> 00:19:43,639
Speaker 3: lot to work with.

352
00:19:43,920 --> 00:19:47,560
Speaker 1: And this is another case of the Fifth Circuit, that

353
00:19:47,760 --> 00:19:51,119
Speaker 1: very very conservative circuit, being reversed. I think it's the

354
00:19:51,160 --> 00:19:54,639
Speaker 1: fourth case so far this term where the Court has

355
00:19:54,680 --> 00:19:57,720
Speaker 1: reversed the Fifth Circuit. Do you think the justices are

356
00:19:57,760 --> 00:20:00,520
Speaker 1: sending them a message they could be taken the place

357
00:20:00,520 --> 00:20:02,480
Speaker 1: of the Ninth Circuit, which used to be the most

358
00:20:02,520 --> 00:20:03,320
Speaker 1: reversed circuit.

359
00:20:03,680 --> 00:20:06,160
Speaker 3: Yeah, and the Federal Circuit also had a right. Yeah,

360
00:20:06,320 --> 00:20:09,840
Speaker 3: pretty rough track record for a while. From my perspective,

361
00:20:09,840 --> 00:20:14,199
Speaker 3: the Fifth Circuit has essentially seceded from the nation in

362
00:20:14,280 --> 00:20:17,040
Speaker 3: terms of applying the same set of laws, and they're

363
00:20:17,080 --> 00:20:20,240
Speaker 3: making up their own law. And I'm heartened to see

364
00:20:20,280 --> 00:20:24,919
Speaker 3: the Supreme Court push back on that because so much

365
00:20:25,000 --> 00:20:28,960
Speaker 3: of the Fifth Circuit opinions are written with an eye

366
00:20:29,000 --> 00:20:31,960
Speaker 3: towards appealing, towards people like Justice Thomas and Alito. It's

367
00:20:32,080 --> 00:20:36,520
Speaker 3: literally designed to send them the signals to change the law.

368
00:20:37,040 --> 00:20:40,360
Speaker 3: And so far, the Fifth Circuit's not winning that battle,

369
00:20:40,680 --> 00:20:42,560
Speaker 3: and I would like to think they would get the

370
00:20:42,600 --> 00:20:44,560
Speaker 3: message that they're doing it wrong and will improve it.

371
00:20:44,600 --> 00:20:45,560
Speaker 3: I don't think they plan to.

372
00:20:46,000 --> 00:20:49,400
Speaker 1: Yet to be decided, are the cases over the Texas

373
00:20:49,440 --> 00:20:53,639
Speaker 1: and Florida social media laws. Does this case have any

374
00:20:53,800 --> 00:20:58,080
Speaker 1: implications for those? I mean, does the ruling here point

375
00:20:58,119 --> 00:20:59,520
Speaker 1: to anything in those cases?

376
00:21:00,200 --> 00:21:03,720
Speaker 3: So we're eagerly waiting for the Supreme Court to tell

377
00:21:03,800 --> 00:21:09,200
Speaker 3: us the answers in the social media censorship cases involving

378
00:21:09,280 --> 00:21:12,800
Speaker 3: Texas and Florida statutes, which in my mind are even

379
00:21:12,840 --> 00:21:17,719
Speaker 3: more important than this case in terms of quote government censorship.

380
00:21:18,119 --> 00:21:22,520
Speaker 3: And the current case doesn't answer the questions that need

381
00:21:22,560 --> 00:21:25,760
Speaker 3: to be answered to those cases. But depending on how

382
00:21:25,800 --> 00:21:29,240
Speaker 3: the Court answers the questions and the Texas and Florida cases,

383
00:21:29,680 --> 00:21:35,600
Speaker 3: it's possible that the opinions will become unreconcilable. This opinion

384
00:21:35,760 --> 00:21:38,480
Speaker 3: says that internet services are free to decide how to

385
00:21:38,480 --> 00:21:41,920
Speaker 3: handle their content moderation discretion, and it says that many

386
00:21:41,960 --> 00:21:44,919
Speaker 3: times in multiple ways both the majority of the sense Ada.

387
00:21:45,680 --> 00:21:50,040
Speaker 3: If the Texas and Florida laws are upheld, they strip

388
00:21:50,080 --> 00:21:53,760
Speaker 3: away the freedom of internet services to manage content as

389
00:21:53,800 --> 00:21:56,640
Speaker 3: a see fit that would be inconsistent with each other.

390
00:21:56,960 --> 00:22:00,480
Speaker 3: My hope is that the court in the Texas Florida

391
00:22:00,800 --> 00:22:04,760
Speaker 3: social media censorship cases will say that airan services are

392
00:22:05,080 --> 00:22:08,560
Speaker 3: free to manage content as ac fit, just like the

393
00:22:08,640 --> 00:22:11,560
Speaker 3: court said in this opinion in a non binding way,

394
00:22:12,040 --> 00:22:14,680
Speaker 3: in which case opinions will be reconcilably with each other,

395
00:22:15,000 --> 00:22:16,320
Speaker 3: so we'll see.

396
00:22:16,040 --> 00:22:19,920
Speaker 1: A good legal conclusion. Thanks so much, Eric, that'st Professor

397
00:22:20,000 --> 00:22:23,840
Speaker 1: Eric Goleman of Santa Clara University Law School and co

398
00:22:23,880 --> 00:22:27,320
Speaker 1: director of the school's High Tech Law Institute. Coming up

399
00:22:27,320 --> 00:22:30,679
Speaker 1: next on the Bloomberg Law Show, Juliana Sane is a

400
00:22:30,680 --> 00:22:33,640
Speaker 1: free man in Australia. We'll tell you about the plea

401
00:22:33,720 --> 00:22:38,040
Speaker 1: deal that ended his nearly fifteen year legal saga. I'm

402
00:22:38,119 --> 00:22:50,680
Speaker 1: June Grass. When you're listening to Bloomberg. Hours after pleading

403
00:22:50,720 --> 00:22:55,840
Speaker 1: guilty to obtaining and publishing US military secrets, Wikileak's founder,

404
00:22:55,960 --> 00:23:00,800
Speaker 1: Juliana Sange, returned home to Australia to the cheers of supporters,

405
00:23:01,240 --> 00:23:05,200
Speaker 1: ending in nearly fifteen year legal saga. That legal fight

406
00:23:05,320 --> 00:23:08,920
Speaker 1: drew international headlines as he camped out in the Ecuadorian

407
00:23:08,960 --> 00:23:12,720
Speaker 1: embassy in London for seven years, getting asylum on the

408
00:23:12,760 --> 00:23:17,720
Speaker 1: grounds of political persecution while welcoming a parade of celebrity visitors,

409
00:23:17,960 --> 00:23:21,159
Speaker 1: getting married and becoming a father of two. But in

410
00:23:21,240 --> 00:23:26,159
Speaker 1: twenty nineteen, Ecuador revoked his asylum, allowing British police to

411
00:23:26,320 --> 00:23:29,400
Speaker 1: arrest and lock him up in a London prison, while

412
00:23:29,440 --> 00:23:34,040
Speaker 1: the US Justice Department sought to extradite him. The criminal case,

413
00:23:34,080 --> 00:23:38,120
Speaker 1: brought by the Justice Department during the Trump administration, centers

414
00:23:38,119 --> 00:23:41,479
Speaker 1: on the receipt and publication of hundreds of thousands of

415
00:23:41,520 --> 00:23:46,560
Speaker 1: warlogs and diplomatic cables that included details of US military

416
00:23:46,600 --> 00:23:51,920
Speaker 1: wrongdoing in Iraq and Afghanistan. The original charges, seventeen related

417
00:23:51,960 --> 00:23:56,000
Speaker 1: to espionage and one to computer misshus, carried a maximum

418
00:23:56,000 --> 00:23:58,760
Speaker 1: penalty of one hundred and seventy five years in prison.

419
00:23:59,200 --> 00:24:02,600
Speaker 1: Under the plea agree, Assange pleaded guilty to one felony,

420
00:24:02,920 --> 00:24:05,560
Speaker 1: and the judge sentenced him to the five years he's

421
00:24:05,640 --> 00:24:10,160
Speaker 1: already spent in prison in the UK. Assnge's wife, Stella

422
00:24:10,400 --> 00:24:12,240
Speaker 1: said he never should have been charged.

423
00:24:12,760 --> 00:24:15,119
Speaker 4: It's an attack on the public's right to know and

424
00:24:15,160 --> 00:24:16,560
Speaker 4: it should never have been brought.

425
00:24:16,760 --> 00:24:19,520
Speaker 3: Julian should never have spent a single day in prison.

426
00:24:19,800 --> 00:24:22,800
Speaker 1: To his supporters, Assange is a martyr who has been

427
00:24:22,840 --> 00:24:27,200
Speaker 1: persecuted for exposing corruption and war crimes. To others, He's

428
00:24:27,240 --> 00:24:31,359
Speaker 1: an unscrupulous hacker who put lives in danger by publishing

429
00:24:31,480 --> 00:24:35,800
Speaker 1: sensitive state secrets. Joining me is Adam Hickey a partner

430
00:24:35,800 --> 00:24:40,399
Speaker 1: at Mayor Brown. This is a nearly fifteen year legal drama.

431
00:24:40,560 --> 00:24:42,960
Speaker 1: Why do you think this resolution now?

432
00:24:43,720 --> 00:24:48,320
Speaker 5: Well, the longer case like this goes on, and the

433
00:24:48,359 --> 00:24:53,919
Speaker 5: more uncertain extradition becomes, and the longer defendant spends in custody,

434
00:24:54,440 --> 00:24:57,800
Speaker 5: the balance of factor shifts, and sometimes, as the saying goes,

435
00:24:57,800 --> 00:24:59,840
Speaker 5: a bird in hand is better than two in the bush.

436
00:25:00,200 --> 00:25:05,480
Speaker 5: So I suspect the decision by the British court in

437
00:25:05,600 --> 00:25:10,080
Speaker 5: May allowing it another round of appeals, together with the

438
00:25:10,080 --> 00:25:13,520
Speaker 5: fact he was already detained for about five years and

439
00:25:13,560 --> 00:25:17,000
Speaker 5: the likely sentence, led US officials to conclude this was

440
00:25:17,000 --> 00:25:20,560
Speaker 5: a better way to bring finality uncertainty to the case

441
00:25:20,880 --> 00:25:23,680
Speaker 5: and achieve a guilty plea in admission of wrongdoing, which

442
00:25:23,760 --> 00:25:27,000
Speaker 5: is one of the department's principal priorities in any case.

443
00:25:27,400 --> 00:25:30,920
Speaker 1: Yeah, let me ask you about that, because he pleaded guilty,

444
00:25:31,480 --> 00:25:33,959
Speaker 1: but at the same time he gave this statement to

445
00:25:34,200 --> 00:25:36,800
Speaker 1: the court that seemed to indicate he didn't think he

446
00:25:36,840 --> 00:25:39,760
Speaker 1: was guilty. He said, working as a journalist, I encourage

447
00:25:39,800 --> 00:25:42,880
Speaker 1: my source to provide information that was said to be classified.

448
00:25:43,240 --> 00:25:45,520
Speaker 1: In order to publish that information. I believe that the

449
00:25:45,520 --> 00:25:49,000
Speaker 1: First Amendment protected that activity. I believe the First Amendment

450
00:25:49,080 --> 00:25:52,160
Speaker 1: and the Espionage Act are in contradiction with each other,

451
00:25:52,359 --> 00:25:54,400
Speaker 1: but accept that it would be difficult to win such

452
00:25:54,400 --> 00:25:57,680
Speaker 1: a case given all these circumstances. So he said he's guilty.

453
00:25:57,720 --> 00:25:59,680
Speaker 1: But is he saying he's guilty?

454
00:26:00,040 --> 00:26:02,840
Speaker 5: That's a fair point. I think a lawyer would hear

455
00:26:02,880 --> 00:26:05,920
Speaker 5: that statement to be a protest essentially that this should

456
00:26:06,000 --> 00:26:08,080
Speaker 5: not have been a crime. But he's not disputing the

457
00:26:08,080 --> 00:26:10,919
Speaker 5: facts that, in the government's view, make it a crime.

458
00:26:11,400 --> 00:26:14,920
Speaker 5: And so it's different from asserting a factual innocence, which

459
00:26:14,960 --> 00:26:16,960
Speaker 5: if he had done that, the court probably could not

460
00:26:17,040 --> 00:26:19,640
Speaker 5: have accepted as guilty. Please, so put it this way,

461
00:26:19,680 --> 00:26:23,040
Speaker 5: it was good enough, good enough for the government and

462
00:26:23,080 --> 00:26:24,359
Speaker 5: good enough for the court.

463
00:26:24,640 --> 00:26:27,080
Speaker 1: President Joe Biden had said in recent months that he

464
00:26:27,240 --> 00:26:30,720
Speaker 1: was considering a request from the Australian government to strike

465
00:26:30,760 --> 00:26:33,600
Speaker 1: a deal to allow as Sance to return home. However,

466
00:26:33,880 --> 00:26:39,120
Speaker 1: the administration distanced itself from the plea. The National Security

467
00:26:39,160 --> 00:26:42,359
Speaker 1: spokesperson said it was an independent decision made by the

468
00:26:42,400 --> 00:26:45,480
Speaker 1: Department of Justice and there was no White House involvement.

469
00:26:46,240 --> 00:26:49,159
Speaker 1: Is that believable, I mean, Biden was talking with the

470
00:26:49,200 --> 00:26:50,640
Speaker 1: Australian Prime Minister.

471
00:26:51,600 --> 00:26:54,119
Speaker 5: Yeah, but that doesn't you know, presidents, and I have

472
00:26:54,200 --> 00:26:55,919
Speaker 5: served as the pleasure and honor of serving in the

473
00:26:56,040 --> 00:26:59,119
Speaker 5: Justice Department under a number of presidents, almost all of

474
00:26:59,119 --> 00:27:01,359
Speaker 5: whom said something at one point about one of the

475
00:27:01,400 --> 00:27:05,040
Speaker 5: cases I was handling, but that never filtered down to

476
00:27:05,119 --> 00:27:08,120
Speaker 5: me in terms of a direction on how we would proceed.

477
00:27:08,480 --> 00:27:11,840
Speaker 5: Every Attorney General I worked for held the line, and

478
00:27:11,880 --> 00:27:14,160
Speaker 5: I always felt like I was taking direction from them,

479
00:27:14,320 --> 00:27:17,440
Speaker 5: not the White House. So here, whatever the President said

480
00:27:17,440 --> 00:27:19,760
Speaker 5: to the press, I believe the decision was made by

481
00:27:19,760 --> 00:27:20,840
Speaker 5: the Department on its own.

482
00:27:21,000 --> 00:27:24,280
Speaker 1: Does the Department take into account that, you know? I mean,

483
00:27:24,320 --> 00:27:26,920
Speaker 1: he has said things like he thought that the US

484
00:27:27,040 --> 00:27:30,640
Speaker 1: government was trying to assassinate him, that after some time

485
00:27:30,680 --> 00:27:33,240
Speaker 1: he's going to go on talk shows and write a book,

486
00:27:33,280 --> 00:27:37,679
Speaker 1: et cetera, et cetera, proclaiming his innocence and bad mounting

487
00:27:37,720 --> 00:27:38,280
Speaker 1: the US.

488
00:27:38,720 --> 00:27:41,239
Speaker 5: I don't think the Department just just cares very much

489
00:27:41,240 --> 00:27:44,119
Speaker 5: about that. I think there would be concern if there

490
00:27:44,119 --> 00:27:47,320
Speaker 5: were beliefs that he still had Class D information in

491
00:27:47,359 --> 00:27:50,520
Speaker 5: his possession or within reach, and I suspect they would

492
00:27:50,920 --> 00:27:54,760
Speaker 5: think about that in reaching any resolution but whether you

493
00:27:54,800 --> 00:27:58,000
Speaker 5: know he wants to call the department names, you know,

494
00:27:58,160 --> 00:28:00,120
Speaker 5: those aren't sticks and stones. I don't think they'll care

495
00:28:00,200 --> 00:28:01,680
Speaker 5: very much about that, and I don't tend to think

496
00:28:01,720 --> 00:28:04,639
Speaker 5: they take it personally when a defendant has a gripe

497
00:28:05,080 --> 00:28:06,320
Speaker 5: for being convicted of a crime.

498
00:28:07,000 --> 00:28:09,639
Speaker 1: So the US, I mean, seemed to go out of

499
00:28:09,680 --> 00:28:12,440
Speaker 1: their way to accommodate him. He didn't want to appear

500
00:28:12,480 --> 00:28:16,280
Speaker 1: on US soil, so they had the proceedings take place

501
00:28:16,359 --> 00:28:21,120
Speaker 1: in this federal court based in Saipan. Why take such steps?

502
00:28:21,160 --> 00:28:25,720
Speaker 1: Why not happen come to the Continental US and plead guilty.

503
00:28:25,920 --> 00:28:28,119
Speaker 5: Yeah. I think it goes back to your first question

504
00:28:28,160 --> 00:28:30,159
Speaker 5: about why resolve the case now and why do it

505
00:28:30,160 --> 00:28:33,199
Speaker 5: in this way? I think you know, he had some

506
00:28:33,440 --> 00:28:36,520
Speaker 5: leverage because as long as he's willing to sit in

507
00:28:36,560 --> 00:28:40,920
Speaker 5: a UK prison or jail rather fighting the extradition, and

508
00:28:40,960 --> 00:28:42,600
Speaker 5: as long as it looks like that's going to draw

509
00:28:42,600 --> 00:28:46,320
Speaker 5: the process out, he has some leverage over the Justice Department,

510
00:28:46,360 --> 00:28:49,240
Speaker 5: which wants to get a resolution. And so if the

511
00:28:49,280 --> 00:28:50,760
Speaker 5: price of that resolution is a.

512
00:28:50,720 --> 00:28:53,239
Speaker 3: Guilty plea in a territory.

513
00:28:52,720 --> 00:28:55,720
Speaker 5: As opposed to the Continental US, I think you could

514
00:28:55,720 --> 00:28:58,080
Speaker 5: find lawyers in the Department, who would just accept that

515
00:28:58,240 --> 00:29:01,480
Speaker 5: as a compromise. What matters, It was a plea in

516
00:29:01,600 --> 00:29:04,200
Speaker 5: federal district court, wherever that court may be.

517
00:29:04,320 --> 00:29:08,320
Speaker 1: So finally, he's barred from returning to the US without permission,

518
00:29:08,800 --> 00:29:12,800
Speaker 1: and his family says he'll be seeking a US presidential pardon,

519
00:29:13,480 --> 00:29:16,760
Speaker 1: arguing the deal set's a dangerous precedent for journalists. Did

520
00:29:16,760 --> 00:29:19,600
Speaker 1: you see Joe Biden or Donald Trump granting him a

521
00:29:19,600 --> 00:29:20,720
Speaker 1: presidential pardon?

522
00:29:21,200 --> 00:29:23,040
Speaker 5: I mean, I think it's hard. If you look at

523
00:29:23,040 --> 00:29:27,640
Speaker 5: the facts. You recall that the information attributed to Wiki

524
00:29:27,720 --> 00:29:30,880
Speaker 5: leaks was put online without any kind of filtering or

525
00:29:31,000 --> 00:29:34,960
Speaker 5: editorial curation, unlike what you'd see a major news outlet do,

526
00:29:35,480 --> 00:29:37,720
Speaker 5: and that as a consequence of that, at least according

527
00:29:37,720 --> 00:29:41,280
Speaker 5: to press reports, sources or others died or at least

528
00:29:41,280 --> 00:29:45,200
Speaker 5: put in physical danger. So I would be surprised if

529
00:29:45,240 --> 00:29:48,240
Speaker 5: you saw an American president exercise clemency that way. But

530
00:29:48,600 --> 00:29:51,560
Speaker 5: you know American pologers can be surprising, so I guess

531
00:29:51,560 --> 00:29:55,280
Speaker 5: we'll see. I mean, his supporters really look at this

532
00:29:55,360 --> 00:29:57,960
Speaker 5: as a slippery slope and argue you can't make a

533
00:29:58,120 --> 00:30:01,920
Speaker 5: meaningful distinction between him and journalists, And I think you

534
00:30:01,920 --> 00:30:04,600
Speaker 5: can be more critical and say, in fact, there are distinctions,

535
00:30:04,640 --> 00:30:07,800
Speaker 5: and one of the most important ones, which is many

536
00:30:07,960 --> 00:30:12,720
Speaker 5: journalists that expose classified programs do so after listening to

537
00:30:12,760 --> 00:30:15,760
Speaker 5: the government make arguments about how best to protect human

538
00:30:15,840 --> 00:30:19,239
Speaker 5: lives or other important equities. And that you know, if

539
00:30:19,240 --> 00:30:23,080
Speaker 5: you're an organization that believes in transparency above everything else,

540
00:30:23,600 --> 00:30:27,160
Speaker 5: that distinguishes you from journalism which is not just about

541
00:30:27,280 --> 00:30:29,280
Speaker 5: promoting the transparency of information.

542
00:30:29,640 --> 00:30:32,040
Speaker 1: I am completely sure that we are going to be

543
00:30:32,120 --> 00:30:35,880
Speaker 1: hearing a lot from Julian Assange in the future. Thanks

544
00:30:35,880 --> 00:30:38,560
Speaker 1: for being on the show. Adam. That's Adam Hickey, a

545
00:30:38,640 --> 00:30:41,840
Speaker 1: partner at Mayor Brown. In other legal news today, Homeland

546
00:30:41,920 --> 00:30:46,920
Speaker 1: Security Secretary Alejandro Majorcis says the actions taken by President

547
00:30:47,000 --> 00:30:50,280
Speaker 1: Biden to limit the amount of asylum seekers coming to

548
00:30:50,320 --> 00:30:55,360
Speaker 1: the Southern border are already garnering results. According to Majorcis,

549
00:30:55,600 --> 00:30:58,800
Speaker 1: border encounters have declined by about forty percent at the

550
00:30:58,880 --> 00:31:02,120
Speaker 1: Southern border and more than twenty four thousand people have

551
00:31:02,160 --> 00:31:04,560
Speaker 1: been returned to their home countries.

552
00:31:04,760 --> 00:31:08,680
Speaker 4: Across the entire Southern border. Border patrol encounters have dropped

553
00:31:08,760 --> 00:31:12,480
Speaker 4: by over forty percent. We are removing more non citizens

554
00:31:12,520 --> 00:31:14,520
Speaker 4: without a legal basis.

555
00:31:14,200 --> 00:31:18,960
Speaker 1: To stay here in Arizona today. MAJORCIS also stressed the

556
00:31:19,040 --> 00:31:23,400
Speaker 1: need for Congress to approve funding for more resources, especially

557
00:31:23,480 --> 00:31:26,520
Speaker 1: at US ports of entry, to help those who try

558
00:31:26,520 --> 00:31:29,600
Speaker 1: to apply for asylum in advance via an app.

559
00:31:30,160 --> 00:31:34,360
Speaker 4: The number of appointments that are permitted through CBB one,

560
00:31:34,560 --> 00:31:38,280
Speaker 4: approximately one four hundred to one thousand, five hundred a day,

561
00:31:38,520 --> 00:31:41,040
Speaker 4: are based on the capacity of our ports of entry.

562
00:31:41,240 --> 00:31:44,160
Speaker 4: They are antiquated ports of entry that are also in

563
00:31:44,200 --> 00:31:46,200
Speaker 4: need of funding to modernize them.

564
00:31:46,760 --> 00:31:50,280
Speaker 1: Overall, border encounters have been on the decline since February.

565
00:31:50,760 --> 00:31:53,080
Speaker 1: And that's it for this edition of The Bloomberg Law Show.

566
00:31:53,400 --> 00:31:55,800
Speaker 1: Remember you can always get the latest legal news on

567
00:31:55,800 --> 00:31:59,960
Speaker 1: our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify,

568
00:32:00,280 --> 00:32:05,320
Speaker 1: and at www dot bloomberg dot com, slash podcast, Slash Law,

569
00:32:05,720 --> 00:32:08,280
Speaker 1: and remember to tune into The Bloomberg Law Show every

570
00:32:08,360 --> 00:32:12,280
Speaker 1: weeknight at ten pm Wall Street Time. I'm June Grosso

571
00:32:12,400 --> 00:32:14,000
Speaker 1: and you're listening to Bloomberg