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

2
00:00:11,760 --> 00:00:15,560
Speaker 2: Special counsel David Wise took a victory lap of sorts

3
00:00:15,920 --> 00:00:19,360
Speaker 2: after the first conviction of the child of a sitting president.

4
00:00:20,239 --> 00:00:23,720
Speaker 3: While there has been much testimony about the defendant's abuse

5
00:00:23,760 --> 00:00:28,680
Speaker 3: of drugs and alcohol, ultimately this case was not just

6
00:00:28,840 --> 00:00:34,080
Speaker 3: about addiction, a disease that haunts families across the United States,

7
00:00:34,720 --> 00:00:39,360
Speaker 3: including Hunter Biden's family. This case was about the illegal

8
00:00:39,479 --> 00:00:42,760
Speaker 3: choices defendant made while in the throes of addiction.

9
00:00:44,159 --> 00:00:48,240
Speaker 2: After less than three hours of deliberations, a jury convicted

10
00:00:48,320 --> 00:00:52,080
Speaker 2: Hunter Biden of three counts of violating federal gun laws

11
00:00:52,400 --> 00:00:55,640
Speaker 2: for illegally checking a box on a form stating that

12
00:00:55,720 --> 00:00:58,480
Speaker 2: he wasn't an active drug user at the time he

13
00:00:58,560 --> 00:01:02,600
Speaker 2: bought a firearm. After the verdict, President Joe Biden said

14
00:01:02,600 --> 00:01:05,640
Speaker 2: in a statement that he would accept the outcome and

15
00:01:05,760 --> 00:01:10,320
Speaker 2: continue to respect the judicial process as Hunter considers an appeal.

16
00:01:10,680 --> 00:01:14,000
Speaker 2: And defense attorney Abbey Lowell also said they would continue

17
00:01:14,040 --> 00:01:18,760
Speaker 2: to vigorously pursue all the legal challenges available. Joining me

18
00:01:18,840 --> 00:01:23,200
Speaker 2: is former federal prosecutor Michael Weinstein, a partner at Cole Shots.

19
00:01:23,880 --> 00:01:27,280
Speaker 2: Michael What's your initial reaction to the verdict not surprised.

20
00:01:27,920 --> 00:01:31,960
Speaker 4: The government had the documents and the testimony which got

21
00:01:32,040 --> 00:01:34,959
Speaker 4: them over the hurdle for a guilty verdict. Putting aside

22
00:01:35,040 --> 00:01:38,720
Speaker 4: the legal case, I think it's a sad human story.

23
00:01:39,240 --> 00:01:41,959
Speaker 4: It's sad for the family, whether or not you like

24
00:01:42,160 --> 00:01:46,120
Speaker 4: his father's politics or not. It just reflects how deeply

25
00:01:46,280 --> 00:01:51,920
Speaker 4: people go when they're addicted, whether you're Republican, independent, liberal, Democratic,

26
00:01:52,320 --> 00:01:57,080
Speaker 4: or otherwise. It really shows the throes of problems that

27
00:01:57,160 --> 00:02:01,240
Speaker 4: occur when people have addictions, and that's on a human level.

28
00:02:01,640 --> 00:02:06,560
Speaker 2: Did the defense arguments about the form about Biden not

29
00:02:06,720 --> 00:02:10,840
Speaker 2: knowingly violating the law? I mean, did they carry any

30
00:02:10,919 --> 00:02:13,720
Speaker 2: weight or was their only hope jury nullification.

31
00:02:14,639 --> 00:02:17,480
Speaker 4: I don't think it carried much weight. Clearly, a three

32
00:02:17,560 --> 00:02:21,040
Speaker 4: hour decision by the jury reflects that. I think the

33
00:02:21,120 --> 00:02:23,360
Speaker 4: jury just discounted that the.

34
00:02:23,280 --> 00:02:27,560
Speaker 2: Prosecution seemed to really drag Hunter Biden through the mud,

35
00:02:27,680 --> 00:02:30,760
Speaker 2: not only the testimony of his ex wife, ex lovers,

36
00:02:30,840 --> 00:02:33,680
Speaker 2: but pictures of him half naked with a crack pipe,

37
00:02:34,080 --> 00:02:37,480
Speaker 2: and the prosecutor in the closing argument said the evidence

38
00:02:37,600 --> 00:02:41,080
Speaker 2: was personal, it was ugly, and it was overwhelming, but

39
00:02:41,120 --> 00:02:47,040
Speaker 2: it was also absolutely necessary. Was it all absolutely necessary?

40
00:02:47,919 --> 00:02:50,520
Speaker 4: It was a lot. It seemed excessive at times, and

41
00:02:50,600 --> 00:02:55,000
Speaker 4: it certainly shows the frailty of mister Biden, and you

42
00:02:55,040 --> 00:02:58,320
Speaker 4: know the depths of his addictions at the time. Whether

43
00:02:58,400 --> 00:03:02,119
Speaker 4: or not it had a significant impact on the jury unclear,

44
00:03:02,400 --> 00:03:04,160
Speaker 4: but at times it seemed like it was a little

45
00:03:04,200 --> 00:03:04,760
Speaker 4: heavy handed.

46
00:03:05,080 --> 00:03:08,000
Speaker 2: Everyone seemed to agree that the defense made a mistake

47
00:03:08,120 --> 00:03:11,840
Speaker 2: calling Naomi Biden to the stand because on cross the

48
00:03:11,919 --> 00:03:18,360
Speaker 2: prosecution presented her with texts showing some strange, unexplainable behavior

49
00:03:18,560 --> 00:03:21,720
Speaker 2: by Hunter Biden. But what else could the defense have done?

50
00:03:21,800 --> 00:03:24,240
Speaker 2: Do you see anything else that the defense could have done.

51
00:03:24,720 --> 00:03:27,440
Speaker 4: Look, they were in a difficult position. Their hands were

52
00:03:27,480 --> 00:03:30,200
Speaker 4: tied to a great degree, and so their defense strategy

53
00:03:30,280 --> 00:03:34,120
Speaker 4: is somewhat limited, and that might have been one of

54
00:03:34,120 --> 00:03:37,200
Speaker 4: the only moves they could try. But clearly it didn't work.

55
00:03:37,440 --> 00:03:40,400
Speaker 2: Could Hunter Biden taking the stand have made a difference?

56
00:03:40,400 --> 00:03:42,080
Speaker 2: So he may be asking himself that.

57
00:03:42,600 --> 00:03:44,880
Speaker 4: He might be asking himself that, but remember he's got

58
00:03:44,880 --> 00:03:49,600
Speaker 4: another more significant and more serious case that's pending in California,

59
00:03:49,680 --> 00:03:52,480
Speaker 4: and so to have him on the stand, expose him

60
00:03:52,480 --> 00:03:56,240
Speaker 4: to cross examination, I think was just too dangerous.

61
00:03:56,480 --> 00:03:59,320
Speaker 2: Three jurors who spoke to CNN after they reached a

62
00:03:59,320 --> 00:04:02,240
Speaker 2: guilty version said they believed they had no choice but

63
00:04:02,360 --> 00:04:05,960
Speaker 2: to find Hunter Biden guilty, but said they questioned whether

64
00:04:06,000 --> 00:04:09,560
Speaker 2: the criminal case ever should have been brought against Biden.

65
00:04:10,120 --> 00:04:13,000
Speaker 2: One juror said the case seemed like a waste of

66
00:04:13,080 --> 00:04:14,560
Speaker 2: taxpayer dollars.

67
00:04:14,880 --> 00:04:18,279
Speaker 4: It's an interesting perspective, and certainly commentators are going to,

68
00:04:18,360 --> 00:04:21,080
Speaker 4: you know, latch onto that pretty quickly. But the case

69
00:04:21,240 --> 00:04:25,599
Speaker 4: was brought, and it was tried, and the conviction was obtained,

70
00:04:25,720 --> 00:04:28,839
Speaker 4: and so, you know, should it have been And you know,

71
00:04:28,880 --> 00:04:31,240
Speaker 4: whether or not politics played a role in this, you know,

72
00:04:31,520 --> 00:04:32,760
Speaker 4: we may not know so clearly.

73
00:04:33,640 --> 00:04:36,320
Speaker 2: One of the jurors who spoke to CNN said, the

74
00:04:36,440 --> 00:04:39,320
Speaker 2: vote was six to six last night and it was

75
00:04:39,360 --> 00:04:42,960
Speaker 2: eleven to one this morning. Does that show the jury

76
00:04:43,000 --> 00:04:47,360
Speaker 2: process working? Does that show a juror not able to

77
00:04:47,839 --> 00:04:48,960
Speaker 2: hold out?

78
00:04:49,240 --> 00:04:52,239
Speaker 4: That's a big swing. Certainly, that's a pretty significant swing.

79
00:04:52,279 --> 00:04:55,720
Speaker 4: And I wonder what convinced the five or six that

80
00:04:55,960 --> 00:04:58,839
Speaker 4: you know, went from the no column to the yes column.

81
00:04:59,560 --> 00:05:02,000
Speaker 4: What canvinced them to change their mind? Was it some

82
00:05:02,040 --> 00:05:04,720
Speaker 4: additional evidence that they were viewed for the second or

83
00:05:04,720 --> 00:05:07,799
Speaker 4: third time, or was there some perspective that another juror

84
00:05:07,920 --> 00:05:10,719
Speaker 4: gave which convinced them, And I'm sure at some point

85
00:05:10,720 --> 00:05:12,680
Speaker 4: in the future those people will speak out and we'll

86
00:05:12,720 --> 00:05:14,040
Speaker 4: probably learn a little bit more.

87
00:05:14,320 --> 00:05:16,039
Speaker 2: Can any of that be used in an appeal?

88
00:05:16,720 --> 00:05:19,520
Speaker 4: No, unless it was impropriety by the jury, you know,

89
00:05:19,960 --> 00:05:23,520
Speaker 4: something you know untoward and improper by the jury, or

90
00:05:23,520 --> 00:05:25,919
Speaker 4: if they use some outside evidence, then you would have

91
00:05:26,000 --> 00:05:28,599
Speaker 4: questions that would arise as to the validity of the

92
00:05:28,720 --> 00:05:29,360
Speaker 4: of the verdict.

93
00:05:30,200 --> 00:05:33,400
Speaker 2: So the special Counsel David Weiss took a sort of

94
00:05:33,480 --> 00:05:36,880
Speaker 2: victory lap after the verdict. Was that appropriate when he

95
00:05:36,920 --> 00:05:39,320
Speaker 2: has another case against Biden pending.

96
00:05:39,920 --> 00:05:41,800
Speaker 4: Look, I'm not going to comment on, you know, whether

97
00:05:41,880 --> 00:05:44,200
Speaker 4: or not a special council should be, you know, taking

98
00:05:44,279 --> 00:05:47,760
Speaker 4: victory laps in the midst of other more significant cases.

99
00:05:47,800 --> 00:05:49,640
Speaker 4: I think that's the decision for him and for the

100
00:05:49,760 --> 00:05:53,279
Speaker 4: Justice Department and others to comment on. But you know,

101
00:05:53,440 --> 00:05:55,520
Speaker 4: my rule of thumb, you know, when I worked at

102
00:05:55,520 --> 00:05:59,320
Speaker 4: the Department of Justice, was to be humble, appreciative, and

103
00:05:59,400 --> 00:06:02,480
Speaker 4: to keep your head down and just work and proceed forward.

104
00:06:02,520 --> 00:06:03,200
Speaker 4: On the next case.

105
00:06:03,600 --> 00:06:07,640
Speaker 2: He technically faces twenty five years on all three counts.

106
00:06:08,080 --> 00:06:11,440
Speaker 2: What's a likely sentence would a what's a judge going

107
00:06:11,480 --> 00:06:12,320
Speaker 2: to consider here?

108
00:06:13,000 --> 00:06:14,800
Speaker 4: Yeah, I don't think he's going to end up doing

109
00:06:14,800 --> 00:06:17,560
Speaker 4: any jail time. I think he's a first time offender,

110
00:06:18,279 --> 00:06:21,479
Speaker 4: he has now a job, he's a recovering addict or alcoholic.

111
00:06:21,720 --> 00:06:25,400
Speaker 4: So there are reasons and justifications that the judge can

112
00:06:25,520 --> 00:06:29,279
Speaker 4: use under federal statute which could have his sentence be

113
00:06:29,360 --> 00:06:32,640
Speaker 4: whether it's probation, or whether it's house arrest or something

114
00:06:32,680 --> 00:06:35,520
Speaker 4: in community service or something equivalent to that. I do

115
00:06:35,600 --> 00:06:38,560
Speaker 4: not foresee him going to prison on these charges.

116
00:06:39,080 --> 00:06:41,760
Speaker 2: So the judge said something about sentencing in one hundred

117
00:06:41,800 --> 00:06:45,680
Speaker 2: and twenty days. Should he be sentenced before the California

118
00:06:45,880 --> 00:06:49,400
Speaker 2: trial or after the California trial or does it not matter?

119
00:06:49,680 --> 00:06:52,479
Speaker 4: I think you're right. I think that's a difficult question.

120
00:06:52,680 --> 00:06:55,599
Speaker 4: Traditionally the judges like the sentence between three to four

121
00:06:55,600 --> 00:06:58,960
Speaker 4: months after a jury verdict or a plea, so it

122
00:06:59,000 --> 00:07:01,640
Speaker 4: will be interesting to see whether it actually happens before

123
00:07:01,680 --> 00:07:04,159
Speaker 4: the California case. I don't know if the judge was

124
00:07:04,200 --> 00:07:06,919
Speaker 4: holding off setting a sentencing date for that reason, to

125
00:07:07,000 --> 00:07:09,880
Speaker 4: really look into the issue, but my gut tells me

126
00:07:09,920 --> 00:07:12,240
Speaker 4: they'll schedule sentencing shortly.

127
00:07:12,400 --> 00:07:14,760
Speaker 2: Let's talk about some of the appellate issues. What appellate

128
00:07:14,840 --> 00:07:16,000
Speaker 2: issues do you see?

129
00:07:16,160 --> 00:07:19,600
Speaker 4: Well, there's always evidentiary issues, the admission of evidence, motion

130
00:07:20,120 --> 00:07:23,840
Speaker 4: emotion to exclude certain evidence or exclude certain testimony, whether

131
00:07:23,920 --> 00:07:27,680
Speaker 4: or not documents were entered appropriately, whether the scope and

132
00:07:27,760 --> 00:07:31,800
Speaker 4: breath of the testimony was appropriate. Things of that nature

133
00:07:31,800 --> 00:07:33,920
Speaker 4: are the traditional hallmarks of an appeal.

134
00:07:34,680 --> 00:07:37,680
Speaker 2: After the verdict, some of the jurors question whether a

135
00:07:37,800 --> 00:07:41,600
Speaker 2: case like this should even have been brought. I mean,

136
00:07:41,600 --> 00:07:44,040
Speaker 2: you have a drug addicted person who fills out a

137
00:07:44,080 --> 00:07:48,480
Speaker 2: form and lies to get a gun, but then doesn't

138
00:07:48,480 --> 00:07:52,400
Speaker 2: commit any crimes with that gun, and in fact abandons it.

139
00:07:53,040 --> 00:07:56,800
Speaker 4: I would say it's highly unusual, and unfortunately, I think

140
00:07:56,840 --> 00:08:01,600
Speaker 4: what we saw was political pressure and the optics of

141
00:08:01,800 --> 00:08:08,200
Speaker 4: politics at play, and unfortunately Biden was impacted and how

142
00:08:08,200 --> 00:08:11,280
Speaker 4: to go to trial as a result. I don't think normally,

143
00:08:11,400 --> 00:08:15,120
Speaker 4: if this BAC pattern existed with anybody else but the

144
00:08:15,200 --> 00:08:18,480
Speaker 4: name Biden, it probably would not have been brought. And

145
00:08:18,520 --> 00:08:21,520
Speaker 4: if it was brought, it probably would have been pled

146
00:08:21,560 --> 00:08:24,560
Speaker 4: out for terms that you know are reasonable.

147
00:08:24,960 --> 00:08:28,280
Speaker 2: And tell us about the California tax case, which everyone

148
00:08:28,320 --> 00:08:30,320
Speaker 2: seems to think is much more important.

149
00:08:30,680 --> 00:08:33,600
Speaker 4: Yeah, it's a tax case where he is alleged not

150
00:08:33,720 --> 00:08:37,160
Speaker 4: to have paid taxes on over a million dollars of income,

151
00:08:37,600 --> 00:08:40,240
Speaker 4: and that case can hurt them. That case can really

152
00:08:40,320 --> 00:08:43,760
Speaker 4: hurt them both financially but also from a potential jail

153
00:08:43,840 --> 00:08:45,800
Speaker 4: time that has serious consequences.

154
00:08:46,120 --> 00:08:48,160
Speaker 2: What kind of jail time is associated with that?

155
00:08:49,040 --> 00:08:53,120
Speaker 4: The jail time is contingent upon the tax loss amount

156
00:08:53,240 --> 00:08:56,160
Speaker 4: that the government proves a trial, so he could be

157
00:08:56,240 --> 00:08:58,280
Speaker 4: looking at, you know, a couple of years in prison

158
00:08:58,320 --> 00:09:00,520
Speaker 4: if the tax loss is multimillion dollars.

159
00:09:00,960 --> 00:09:04,640
Speaker 2: He does the Biden case answer the issue of the

160
00:09:04,800 --> 00:09:07,520
Speaker 2: Justice Department being weaponized.

161
00:09:07,160 --> 00:09:09,840
Speaker 4: Well, it's certainly an interesting issue. I like to think

162
00:09:09,880 --> 00:09:13,440
Speaker 4: that the Justice Department is independent and does the right

163
00:09:13,520 --> 00:09:16,840
Speaker 4: thing all the time. Maybe that's just the former DOJ

164
00:09:17,000 --> 00:09:20,520
Speaker 4: lawyer and me saying that, But here it does appear

165
00:09:20,600 --> 00:09:23,800
Speaker 4: that they were influenced by the politics of the day,

166
00:09:24,080 --> 00:09:27,439
Speaker 4: and by bringing the case they can try to show

167
00:09:27,520 --> 00:09:30,560
Speaker 4: a trumpet that they were independent enough to bring a

168
00:09:30,559 --> 00:09:33,400
Speaker 4: case against the sitting president's son. I don't know if

169
00:09:33,400 --> 00:09:35,839
Speaker 4: we have that type of fact pattern in the history

170
00:09:35,880 --> 00:09:38,040
Speaker 4: of the United States, but we seem to be living

171
00:09:38,080 --> 00:09:40,360
Speaker 4: in a time where a lot of things which have

172
00:09:40,480 --> 00:09:42,440
Speaker 4: never occurred previously are happening.

173
00:09:42,559 --> 00:09:47,920
Speaker 2: Would do you understand why Merrick Garland appointed David Weiss

174
00:09:47,960 --> 00:09:51,360
Speaker 2: as Special Counsel after the plea deal fell apart?

175
00:09:51,880 --> 00:09:55,840
Speaker 4: The concern was that because Merrick Garland sits as an

176
00:09:55,880 --> 00:09:58,959
Speaker 4: appointment of the President, that the President could be seen

177
00:09:59,000 --> 00:10:03,920
Speaker 4: as influencing me Eric Gardland's decision making process. As a result,

178
00:10:04,360 --> 00:10:06,960
Speaker 4: instead of him making the decisions in the case whether

179
00:10:07,040 --> 00:10:10,400
Speaker 4: to prosecute, to find a plea or anything related to

180
00:10:10,440 --> 00:10:14,400
Speaker 4: the case, he essentially offloaded it to a Special Council

181
00:10:14,720 --> 00:10:18,599
Speaker 4: and so that the responsibility and independence of the prosecution

182
00:10:18,920 --> 00:10:21,240
Speaker 4: is maintained by having a special counsel handle it.

183
00:10:22,080 --> 00:10:24,640
Speaker 2: But do you think that there's pressure on a special

184
00:10:24,720 --> 00:10:27,480
Speaker 2: Council not to take plea deals but rather to bring

185
00:10:27,559 --> 00:10:29,800
Speaker 2: things to trial and try to get verdicts so they

186
00:10:29,840 --> 00:10:31,679
Speaker 2: can say, look what I've done.

187
00:10:32,080 --> 00:10:36,080
Speaker 4: It's absolutely a great question, June, and I think every

188
00:10:36,120 --> 00:10:41,080
Speaker 4: Special Council probably feels some pressure for a result, whether

189
00:10:41,120 --> 00:10:44,640
Speaker 4: the result is a non prosecution like when Robert Hurr

190
00:10:44,720 --> 00:10:47,640
Speaker 4: found some non prosecution last year, or whether or not

191
00:10:47,760 --> 00:10:51,360
Speaker 4: it's in Lewinsky matter where the Special Council went off

192
00:10:51,400 --> 00:10:55,640
Speaker 4: on other issues, but did find criminal and civil and

193
00:10:55,760 --> 00:10:58,840
Speaker 4: congressional issues to pursue. I do think there's a certain

194
00:10:59,080 --> 00:11:03,079
Speaker 4: mentality that you have to justify your appointment and find something.

195
00:11:03,280 --> 00:11:04,559
Speaker 4: But it's a great question to you.

196
00:11:05,160 --> 00:11:08,960
Speaker 2: So many special councils in such a short period of time.

197
00:11:09,160 --> 00:11:13,320
Speaker 2: Thanks so much, Michael. That's former federal prosecutor Michael Weinstein

198
00:11:13,400 --> 00:11:17,000
Speaker 2: of Coal Shots. Coming up next on the Bloomberg Laws Show,

199
00:11:17,520 --> 00:11:20,120
Speaker 2: a case over a T shirt at a middle school

200
00:11:20,559 --> 00:11:23,800
Speaker 2: goes up to a circuit Court of Appeals. I'm June

201
00:11:23,800 --> 00:11:25,559
Speaker 2: Grosso and you're listening to Bloomberg.

202
00:11:26,120 --> 00:11:29,280
Speaker 5: This is the Bloomberg Green Report. The world has had

203
00:11:29,320 --> 00:11:31,800
Speaker 5: a full year of record heat, and experts say we

204
00:11:31,840 --> 00:11:35,040
Speaker 5: can expect more. It became official late last week that

205
00:11:35,120 --> 00:11:38,559
Speaker 5: May was the twelfth consecutive month of record breaking temperatures,

206
00:11:38,720 --> 00:11:41,679
Speaker 5: and experts say more heat waves are likely this summer.

207
00:11:42,040 --> 00:11:46,400
Speaker 5: Europe's Copernicus Climate Change Service as overall global temperatures last

208
00:11:46,440 --> 00:11:50,160
Speaker 5: month were one point fifty two degrees celsius above historical

209
00:11:50,200 --> 00:11:53,720
Speaker 5: averages and mark the hottest May on record. There was

210
00:11:53,840 --> 00:11:57,400
Speaker 5: catastrophic heat from California to New Delhi, and it led

211
00:11:57,440 --> 00:12:01,600
Speaker 5: to some fatalities. Climate change is exacerbating the impact of

212
00:12:01,679 --> 00:12:05,200
Speaker 5: extreme weather. The global average temperature for the last twelve

213
00:12:05,200 --> 00:12:08,360
Speaker 5: months was one point sixty three degree celsius higher than

214
00:12:08,400 --> 00:12:11,520
Speaker 5: pre industrial levels, and that is above the threshold that

215
00:12:11,600 --> 00:12:15,960
Speaker 5: scientists say threatens life on the planet. The northern hemisphere

216
00:12:16,000 --> 00:12:19,840
Speaker 5: is bracing for another extreme summer after scorching heat threatened

217
00:12:19,840 --> 00:12:23,760
Speaker 5: the health and livelihoods of millions last year. Jeff Bellinger,

218
00:12:23,880 --> 00:12:27,920
Speaker 5: Bloomberg Radio.

219
00:12:28,720 --> 00:12:33,520
Speaker 1: This is Bloomberg Law, with June Brusso from Bloomberg Radio.

220
00:12:36,120 --> 00:12:39,680
Speaker 2: A federal appeals court has ruled that a Massachusetts public

221
00:12:39,760 --> 00:12:43,200
Speaker 2: school can ban a student from wearing a T shirt

222
00:12:43,280 --> 00:12:47,880
Speaker 2: reading there are only two genders. Free speech rights can

223
00:12:48,040 --> 00:12:51,320
Speaker 2: collide with the duties of public schools, but the First

224
00:12:51,360 --> 00:12:54,960
Speaker 2: Circuit ruled that the First Amendment does an override a

225
00:12:54,960 --> 00:13:00,760
Speaker 2: public school's obligation to protect LGBTQ plus students from discrimination.

226
00:13:01,520 --> 00:13:04,800
Speaker 2: Student Leam Morrison wore the T shirt in seventh grade

227
00:13:04,840 --> 00:13:08,960
Speaker 2: and sued after school officials concluded the message would demean

228
00:13:09,080 --> 00:13:13,760
Speaker 2: the identity of transgender and gender non conforming students and

229
00:13:13,920 --> 00:13:16,480
Speaker 2: ordered him to either remove the shirt or leave for

230
00:13:16,520 --> 00:13:20,040
Speaker 2: the day. He made a statement explaining his position on

231
00:13:20,120 --> 00:13:23,880
Speaker 2: the website of the lawyers defending him, the conservative Christian

232
00:13:23,960 --> 00:13:26,320
Speaker 2: legal group Alliance Defending Freedom.

233
00:13:26,679 --> 00:13:29,680
Speaker 6: I believe there are only two sexes, male and female.

234
00:13:29,800 --> 00:13:32,520
Speaker 6: And I believe what we call a person's sender, whether

235
00:13:32,559 --> 00:13:35,199
Speaker 6: someone is a man or woman, boy or girl, has

236
00:13:35,240 --> 00:13:37,840
Speaker 6: everything to do with whether they're sex is male or female.

237
00:13:38,400 --> 00:13:41,040
Speaker 6: This view was backed up by science, And even though

238
00:13:41,040 --> 00:13:43,280
Speaker 6: the administrators at my school would like me to think

239
00:13:43,280 --> 00:13:45,880
Speaker 6: I'm a load in holding this view, I know I'm not.

240
00:13:46,559 --> 00:13:50,920
Speaker 2: In the unanimous decision, Chief Judge David Baron wrote, school

241
00:13:50,960 --> 00:13:55,280
Speaker 2: officials must have some margin to make high stakes assessments

242
00:13:55,320 --> 00:13:59,440
Speaker 2: in conditions of inevitable uncertainty. Joining me his first Amendment

243
00:13:59,520 --> 00:14:02,400
Speaker 2: law expert, or Timothy Zick, a professor at William and

244
00:14:02,440 --> 00:14:05,600
Speaker 2: Mary Law School. Tim just tell us about what happened here.

245
00:14:06,600 --> 00:14:10,040
Speaker 7: Yeah, so the twelve year old student was told that

246
00:14:10,120 --> 00:14:12,440
Speaker 7: he could not wear a T shirts I've read as

247
00:14:12,440 --> 00:14:15,880
Speaker 7: he said, there are only two genders. Pursued into a

248
00:14:15,920 --> 00:14:19,360
Speaker 7: provision of a public middle school dress code, and when

249
00:14:19,400 --> 00:14:21,280
Speaker 7: he was told he couldn't wear that shirt, he came

250
00:14:21,320 --> 00:14:23,800
Speaker 7: back a little bit later with a T shirt that

251
00:14:23,880 --> 00:14:26,840
Speaker 7: said the same thing, except only two was covered by

252
00:14:26,840 --> 00:14:29,360
Speaker 7: a piece of cape on which was written the word censored.

253
00:14:29,960 --> 00:14:32,880
Speaker 7: So there are actually two T shirts here. Student was

254
00:14:32,880 --> 00:14:34,080
Speaker 7: told he couldn't wear either one.

255
00:14:34,400 --> 00:14:38,920
Speaker 2: The school's dress code required that quote clothing must not state, imply,

256
00:14:39,320 --> 00:14:42,600
Speaker 2: or depict hate speech or imagery that targets groups based

257
00:14:42,600 --> 00:14:48,680
Speaker 2: on race, ethnicity, gender, sexual orientation, gender identity, religious affiliation,

258
00:14:48,920 --> 00:14:52,600
Speaker 2: or any other classification. Are those kinds of dress codes

259
00:14:53,640 --> 00:14:55,360
Speaker 2: considered constitutional?

260
00:14:56,200 --> 00:15:01,160
Speaker 7: I mean, this court actually addressed whether the code itself constitutional,

261
00:15:01,160 --> 00:15:03,760
Speaker 7: and it said it was. I mean, there's no sort

262
00:15:03,760 --> 00:15:07,800
Speaker 7: of juridical category of hate speech that's uncovered or unprotected

263
00:15:07,800 --> 00:15:11,120
Speaker 7: by the First Amendment. So if this was language that

264
00:15:11,200 --> 00:15:15,040
Speaker 7: was applied and say a statute or a regulation with

265
00:15:15,160 --> 00:15:17,640
Speaker 7: prospective speech staying a public park on a public street

266
00:15:17,680 --> 00:15:21,560
Speaker 7: would be very problematic. But in the context of schools

267
00:15:21,960 --> 00:15:24,400
Speaker 7: and their dress codes, courts have been a little more

268
00:15:24,480 --> 00:15:28,560
Speaker 7: lenient in terms of allowing them to regulate with that

269
00:15:28,680 --> 00:15:32,640
Speaker 7: kind of language and saying, well, it's not unconstitutionally overbroad

270
00:15:32,720 --> 00:15:36,960
Speaker 7: because it only reaches certain kinds of specific speech as

271
00:15:37,000 --> 00:15:40,160
Speaker 7: long as that speech disrupts the school environment, and the

272
00:15:40,200 --> 00:15:45,160
Speaker 7: policy itself can be considered valid. So it is language

273
00:15:45,200 --> 00:15:50,040
Speaker 7: that raises a red flag. Again outside the school context.

274
00:15:50,040 --> 00:15:52,320
Speaker 7: But one of the things about this case that's notable

275
00:15:52,440 --> 00:15:54,960
Speaker 7: is that it takes place within the school setting, and

276
00:15:55,200 --> 00:15:56,920
Speaker 7: the First Amendment applies differently there.

277
00:15:57,600 --> 00:16:00,520
Speaker 2: Did the school just follow its dress code or were

278
00:16:00,560 --> 00:16:04,520
Speaker 2: there other factors that were considered as well.

279
00:16:04,800 --> 00:16:08,440
Speaker 7: Essentially, the school applied its dress code the provision that

280
00:16:08,480 --> 00:16:11,560
Speaker 7: you referred to, referring to hate speech or imagery that

281
00:16:11,640 --> 00:16:16,160
Speaker 7: targets groups based on, among other things, gender identity, and

282
00:16:16,520 --> 00:16:20,520
Speaker 7: the courts agreed with or deferred to the officials at

283
00:16:20,520 --> 00:16:23,840
Speaker 7: the school who thought that the shirt was a commentary

284
00:16:24,000 --> 00:16:28,720
Speaker 7: on gender identity, denigrating students who did not fit the

285
00:16:28,760 --> 00:16:31,240
Speaker 7: gender norm or who were transgender, or what have you.

286
00:16:31,960 --> 00:16:35,080
Speaker 7: So the school's perspective is, you know, we're enforcing our

287
00:16:35,160 --> 00:16:37,160
Speaker 7: dress code. And when the father of a student asked

288
00:16:37,360 --> 00:16:39,800
Speaker 7: what was the problem, that's the explanation they gave him.

289
00:16:40,680 --> 00:16:44,720
Speaker 2: And the student's lawyer said, this isn't about t shirts.

290
00:16:44,720 --> 00:16:47,360
Speaker 2: It's about a public school telling a middle school or

291
00:16:47,360 --> 00:16:49,960
Speaker 2: that he isn't allowed to express a view that differs

292
00:16:49,960 --> 00:16:53,720
Speaker 2: from his own, and that the school actively promotes its

293
00:16:53,800 --> 00:16:57,520
Speaker 2: views about gender through posters and pride events, and it

294
00:16:57,600 --> 00:17:00,560
Speaker 2: encourages students to wear clothing with mess just on the

295
00:17:00,600 --> 00:17:03,920
Speaker 2: same topic. Does that advance the argument in anyway?

296
00:17:04,800 --> 00:17:07,480
Speaker 7: Yeah? I mean so. The baseline rule here is that

297
00:17:07,720 --> 00:17:10,720
Speaker 7: K through twelve students don't shed their constitutional rights to

298
00:17:10,840 --> 00:17:14,040
Speaker 7: free speech at the schoolhouse gate. But those rights aren't

299
00:17:14,040 --> 00:17:16,280
Speaker 7: the same as the rights of students or adults to

300
00:17:16,359 --> 00:17:19,639
Speaker 7: speak and say a public park or on a public street.

301
00:17:20,240 --> 00:17:23,800
Speaker 7: School officials are allowed, you know, to regulate speech if

302
00:17:23,840 --> 00:17:27,479
Speaker 7: it substantially disrupts the school environment or if it invades

303
00:17:27,520 --> 00:17:29,600
Speaker 7: the rights of others on campus. Those are the two

304
00:17:29,640 --> 00:17:34,120
Speaker 7: main limitations, right. What they're not allowed to do is

305
00:17:34,200 --> 00:17:38,000
Speaker 7: to sort of discriminate based on viewpoint, which is what

306
00:17:38,119 --> 00:17:40,280
Speaker 7: the father and the student of alleged they've done here.

307
00:17:40,800 --> 00:17:42,840
Speaker 7: One of the things to note about the cases involves

308
00:17:42,880 --> 00:17:44,560
Speaker 7: the wearing of a T shirt. So this isn't the

309
00:17:44,600 --> 00:17:47,560
Speaker 7: case that says you can't say that there are only

310
00:17:47,560 --> 00:17:50,960
Speaker 7: two genders. It's not a case that disallows or punishes

311
00:17:51,080 --> 00:17:54,399
Speaker 7: the statement of that idea in any context. It's not

312
00:17:54,760 --> 00:17:57,320
Speaker 7: a case about an assignment where a student takes that

313
00:17:57,400 --> 00:18:00,960
Speaker 7: view or anything like that. So from this school's perspective,

314
00:18:01,040 --> 00:18:03,240
Speaker 7: this is about the dress code, and this is about

315
00:18:03,520 --> 00:18:06,560
Speaker 7: a speech that disrupts the school environment, and that's how

316
00:18:07,000 --> 00:18:09,080
Speaker 7: they defended their decision here.

317
00:18:09,440 --> 00:18:13,240
Speaker 2: During the oral arguments, one of the judges contrasted the

318
00:18:13,280 --> 00:18:16,840
Speaker 2: shirt with a brochure handed out by students, saying, unlike

319
00:18:16,880 --> 00:18:19,840
Speaker 2: those pieces of paper, a student couldn't throw away the shirt,

320
00:18:19,960 --> 00:18:22,760
Speaker 2: and a T shirt that is worn all day is

321
00:18:22,840 --> 00:18:24,840
Speaker 2: worn all day. You have to look at it, you

322
00:18:24,920 --> 00:18:27,960
Speaker 2: have to read it. Did that come into the opinion

323
00:18:28,359 --> 00:18:29,080
Speaker 2: that element?

324
00:18:29,520 --> 00:18:32,000
Speaker 7: It definitely did. The Court took into account the form

325
00:18:32,240 --> 00:18:34,800
Speaker 7: of speech right, the manner or the mode in which

326
00:18:34,840 --> 00:18:38,359
Speaker 7: the speech is communicated. And as you say, as the

327
00:18:38,400 --> 00:18:41,800
Speaker 7: court recognized the T shirt visible to any student throughout

328
00:18:41,800 --> 00:18:44,040
Speaker 7: the day who happened to be sitting near or by

329
00:18:44,119 --> 00:18:47,359
Speaker 7: this person or walked at them in the hallway. So

330
00:18:47,400 --> 00:18:50,639
Speaker 7: it's sort of an ever present message. And if you

331
00:18:50,760 --> 00:18:53,720
Speaker 7: view that message as the school officials did, and as

332
00:18:53,760 --> 00:18:56,560
Speaker 7: the Court of Appeals agreed or at least referred to

333
00:18:56,600 --> 00:19:00,000
Speaker 7: their reading of it, it detegrates people based on their identities,

334
00:19:00,200 --> 00:19:03,840
Speaker 7: gender identity, and that the Court said, is linked to

335
00:19:04,119 --> 00:19:07,359
Speaker 7: at least the potential for or a forecast of disruption

336
00:19:08,040 --> 00:19:11,520
Speaker 7: in the school. You might have students wearing contrary or

337
00:19:11,560 --> 00:19:14,560
Speaker 7: opposed T shirt. You might have arguments between the student

338
00:19:14,640 --> 00:19:17,439
Speaker 7: wearing the shirt and others who disagree, and that's the

339
00:19:17,480 --> 00:19:21,760
Speaker 7: basis on which the Court ultimately decides the case. So yes,

340
00:19:21,880 --> 00:19:25,920
Speaker 7: the fact that if a T shirt makes a difference, this.

341
00:19:26,080 --> 00:19:31,080
Speaker 2: Was a unanimous opinion. Explain more about how the judges

342
00:19:31,200 --> 00:19:32,840
Speaker 2: came to the conclusion they did.

343
00:19:33,600 --> 00:19:36,639
Speaker 7: Sure, So it's important, I think, to note that the

344
00:19:36,760 --> 00:19:39,920
Speaker 7: first circuit here doesn't adopt some broad offensive to others

345
00:19:40,040 --> 00:19:43,760
Speaker 7: limit on school speech, under which any statement that hurts

346
00:19:43,800 --> 00:19:46,800
Speaker 7: the feelings of some students could be suppressed or punished.

347
00:19:47,680 --> 00:19:50,959
Speaker 7: This isn't a decision that directly addresses bullying or harassment

348
00:19:51,040 --> 00:19:53,880
Speaker 7: in the school context, both of which I think are

349
00:19:54,080 --> 00:19:57,560
Speaker 7: widely viewed as subject to discipline, and rightly so. It

350
00:19:57,640 --> 00:20:00,840
Speaker 7: doesn't rely on the principle of invading the rights of others.

351
00:20:00,920 --> 00:20:03,800
Speaker 7: That's something the Supreme Court had said school officials could

352
00:20:03,840 --> 00:20:06,840
Speaker 7: take into account. So what this boils down to essentially

353
00:20:07,320 --> 00:20:10,919
Speaker 7: two things. One does the T shirt does the message

354
00:20:10,920 --> 00:20:14,560
Speaker 7: on it demean the gender identities of other students? And two,

355
00:20:15,000 --> 00:20:18,760
Speaker 7: for that reason, could the officials at the school foreseeably

356
00:20:19,359 --> 00:20:23,520
Speaker 7: forecast a disruption of the educational environment? And with respect

357
00:20:23,520 --> 00:20:26,440
Speaker 7: to both of those things. The court says yes, essentially

358
00:20:26,480 --> 00:20:31,760
Speaker 7: deferring to the affidavits and the evidence that the school

359
00:20:31,840 --> 00:20:32,960
Speaker 7: officials had provided.

360
00:20:34,320 --> 00:20:38,760
Speaker 2: Chief Judge David Baron, who wrote the opinion, said, the

361
00:20:38,920 --> 00:20:41,439
Speaker 2: question here is not whether the T shirt should have

362
00:20:41,480 --> 00:20:44,959
Speaker 2: been barred. The question is who should decide whether to

363
00:20:45,000 --> 00:20:47,960
Speaker 2: bar them, educators or federal judges.

364
00:20:49,400 --> 00:20:51,560
Speaker 7: Yeah. I think what the court is saying is we

365
00:20:51,560 --> 00:20:54,119
Speaker 7: don't feel comfortable sort of stepping into the shoes of

366
00:20:54,240 --> 00:20:59,240
Speaker 7: school administrators, either in terms of interpreting what the message

367
00:20:59,280 --> 00:21:01,800
Speaker 7: is on the T sh sure or maybe more importantly,

368
00:21:02,400 --> 00:21:06,360
Speaker 7: forecasting whether it would cause disruption. The principle here would

369
00:21:06,400 --> 00:21:09,359
Speaker 7: be who better knows the school environment and what sorts

370
00:21:09,359 --> 00:21:13,359
Speaker 7: of conversation students have had around gender identity, what sorts

371
00:21:13,359 --> 00:21:16,040
Speaker 7: of conflicts they have had in the past about that,

372
00:21:16,600 --> 00:21:20,280
Speaker 7: What kind of activity might occur if we allowed students

373
00:21:20,280 --> 00:21:23,240
Speaker 7: to wear this T shirt with this message to school.

374
00:21:23,760 --> 00:21:27,320
Speaker 7: So they are differring. That's the sort of technical term,

375
00:21:27,359 --> 00:21:30,440
Speaker 7: if you will, for what's going on here to school officials,

376
00:21:30,480 --> 00:21:33,240
Speaker 7: and one could take issue with that, both with respect

377
00:21:33,320 --> 00:21:36,160
Speaker 7: to what the T shirt says. Of course, the judges

378
00:21:36,240 --> 00:21:40,959
Speaker 7: are empowered to view it and interpret it and with

379
00:21:41,000 --> 00:21:43,960
Speaker 7: respect to what kind of different school officials should get.

380
00:21:44,520 --> 00:21:47,200
Speaker 7: If you go too far with that difference, you essentially

381
00:21:47,440 --> 00:21:50,640
Speaker 7: create a situation where school officials can sort of take

382
00:21:50,680 --> 00:21:54,120
Speaker 7: the view that we can suppress speech that we don't

383
00:21:54,119 --> 00:21:57,160
Speaker 7: agree with, right, even if there's no evidence of disruptions

384
00:21:57,160 --> 00:21:59,280
Speaker 7: and the wearing of it, or it wouldn't be a

385
00:21:59,320 --> 00:22:02,359
Speaker 7: reasonable for cast of disruption. If courts are just going

386
00:22:02,400 --> 00:22:07,440
Speaker 7: to defer to educators on these matters, then students' free

387
00:22:07,480 --> 00:22:08,800
Speaker 7: speech rights are going to suffer.

388
00:22:09,480 --> 00:22:11,760
Speaker 2: Give us a little bit of the background of how

389
00:22:11,800 --> 00:22:15,880
Speaker 2: the Supreme Court has treated these cases of free speech

390
00:22:16,040 --> 00:22:16,720
Speaker 2: in schools.

391
00:22:17,640 --> 00:22:20,800
Speaker 7: Well, the Court started in a case called Tinker in

392
00:22:20,880 --> 00:22:24,520
Speaker 7: nineteen fifty nine with a very broad reputation of student

393
00:22:24,640 --> 00:22:27,639
Speaker 7: free speech rights right only if the speech disrupts the

394
00:22:27,720 --> 00:22:32,040
Speaker 7: educational environment or invade the rights of others can officials

395
00:22:32,680 --> 00:22:36,399
Speaker 7: move to suppress it. But in every decision since, at

396
00:22:36,480 --> 00:22:39,480
Speaker 7: least in most decisions sense, the Court has taken the

397
00:22:39,560 --> 00:22:43,919
Speaker 7: view that school administrators have the power to limit or

398
00:22:43,920 --> 00:22:48,600
Speaker 7: restrict speech if it's say, profane or inappropriate for certain

399
00:22:48,840 --> 00:22:54,360
Speaker 7: younger audiences, or it relates to the curriculum of a school.

400
00:22:55,000 --> 00:22:59,600
Speaker 7: So it's pretty consistently since Tinker been the view of

401
00:22:59,600 --> 00:23:03,080
Speaker 7: the Court that school administrators should have a fair amount

402
00:23:03,080 --> 00:23:06,439
Speaker 7: of leeway with respect to student speech. I will say

403
00:23:06,280 --> 00:23:09,240
Speaker 7: they decided a relatively recent case it wasn't about speech

404
00:23:09,560 --> 00:23:13,119
Speaker 7: in the school, but rather on social media outside the school,

405
00:23:13,920 --> 00:23:16,760
Speaker 7: and in that case they ruled in favor of the student.

406
00:23:17,200 --> 00:23:19,440
Speaker 7: So to the extent that trend was moving in one

407
00:23:19,440 --> 00:23:22,359
Speaker 7: direction at least, there's one case recently where the court

408
00:23:22,440 --> 00:23:27,359
Speaker 7: sided with the student who had used profanity is describing

409
00:23:27,359 --> 00:23:31,520
Speaker 7: her experience with the cheerleading squad. Now I remember, Yeah,

410
00:23:31,720 --> 00:23:34,480
Speaker 7: So it has been a while since the Court took

411
00:23:34,480 --> 00:23:36,800
Speaker 7: a case a student does speech case, and so it

412
00:23:36,880 --> 00:23:39,639
Speaker 7: tried to clear up some confusion about what kind of

413
00:23:39,680 --> 00:23:43,240
Speaker 7: authority school administrators have when the speech takes place off

414
00:23:43,320 --> 00:23:47,280
Speaker 7: campus using a student cell phone, for example, on social media.

415
00:23:47,359 --> 00:23:49,720
Speaker 2: Coming up next on the Bloomberg Law Show, I'll continue

416
00:23:49,720 --> 00:23:53,600
Speaker 2: this conversation with Professor Timothy Zick of William and Mary

417
00:23:53,680 --> 00:23:57,160
Speaker 2: Law School. The attorneys for the students say they'll likely

418
00:23:57,280 --> 00:24:01,000
Speaker 2: pursue a further appeal, but that would acquire either the

419
00:24:01,200 --> 00:24:04,560
Speaker 2: entire First Circuit Court of Appeals or the Supreme Court

420
00:24:04,840 --> 00:24:08,200
Speaker 2: agreeing to hear their case. How likely is that I'm

421
00:24:08,280 --> 00:24:10,800
Speaker 2: June Gross and you're listening to Bloomberg with.

422
00:24:10,800 --> 00:24:14,200
Speaker 8: The Bloomberg Small Business Report. I'm Steve Potosk, brought to

423
00:24:14,240 --> 00:24:18,040
Speaker 8: you by Dell dot Com. Data counting small businesses from

424
00:24:18,160 --> 00:24:21,560
Speaker 8: underserved economic and social groups entering the federal marketplace for

425
00:24:21,600 --> 00:24:24,359
Speaker 8: the first time would be required under a new US

426
00:24:24,400 --> 00:24:28,359
Speaker 8: House bill. According to Bloomberg, Government HRS seventy nine eighty

427
00:24:28,359 --> 00:24:33,080
Speaker 8: eight would require the Small Business Administration's annual Procurement Scorecard

428
00:24:33,200 --> 00:24:36,760
Speaker 8: to include the number of new service disabled, veteran owned

429
00:24:36,800 --> 00:24:42,040
Speaker 8: small businesses, small businesses, and historically underutilized business owns, small

430
00:24:42,119 --> 00:24:47,000
Speaker 8: disadvantage businesses and women own small businesses. Along with collecting

431
00:24:47,040 --> 00:24:49,800
Speaker 8: the data, the SPA would be required to assign a

432
00:24:49,840 --> 00:24:53,719
Speaker 8: score to each agency, rating its performance and attracting new entrants.

433
00:24:54,080 --> 00:24:57,800
Speaker 8: As federal contract spending has reached record levels, the account

434
00:24:57,800 --> 00:25:01,760
Speaker 8: of small businesses receiving federal co contracts felt thirty three

435
00:25:01,840 --> 00:25:05,200
Speaker 8: percent from twenty fourteen to last year, including a nearly

436
00:25:05,240 --> 00:25:08,879
Speaker 8: fifty percent drop of new small businesses. That's the Bloomberg

437
00:25:09,000 --> 00:25:10,360
Speaker 8: Small Business Report.

438
00:25:13,800 --> 00:25:18,600
Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.

439
00:25:21,119 --> 00:25:25,000
Speaker 2: A Massachusetts public school can ban a student from wearing

440
00:25:25,040 --> 00:25:29,120
Speaker 2: a shirt reading there are only two genders. That's according

441
00:25:29,119 --> 00:25:31,639
Speaker 2: to the First Circuit Court of Appeals, which said the

442
00:25:31,720 --> 00:25:36,920
Speaker 2: First Amendment doesn't override a public school's obligation to protect

443
00:25:37,119 --> 00:25:42,880
Speaker 2: LGBTQ plus students from discrimination. Chief Judge David Barron wrote,

444
00:25:43,080 --> 00:25:46,879
Speaker 2: while US Supreme Court President holds that schools must permit

445
00:25:47,000 --> 00:25:51,720
Speaker 2: debate over even the most contentious and controversial topics, that

446
00:25:51,960 --> 00:25:55,000
Speaker 2: doesn't mean that our public schools must be a similar,

447
00:25:55,400 --> 00:25:59,680
Speaker 2: unregulated place. The opinion offers more clarity on how the

448
00:25:59,720 --> 00:26:03,480
Speaker 2: First Amendment collides with public school duties under a standard

449
00:26:03,600 --> 00:26:06,879
Speaker 2: set in the nineteen sixty nine Tinker case at the

450
00:26:06,960 --> 00:26:10,400
Speaker 2: US Supreme Court. I've been talking to Professor Timothy Zick

451
00:26:10,640 --> 00:26:13,760
Speaker 2: of William and Mary Law School. Before we go any further,

452
00:26:13,880 --> 00:26:15,840
Speaker 2: Tim tell us about the Tinker case.

453
00:26:17,119 --> 00:26:20,159
Speaker 7: Yeah. So, in Tinker versus Des Moines Independent Community School

454
00:26:20,160 --> 00:26:24,120
Speaker 7: District in nineteen sixty nine, the Court said that students

455
00:26:24,160 --> 00:26:26,879
Speaker 7: do not shed their constitutional rights to freedom of speech

456
00:26:26,920 --> 00:26:30,520
Speaker 7: at the schoolhouse gate, but it also made clear those

457
00:26:30,600 --> 00:26:32,600
Speaker 7: rights are not the same as the rights of students

458
00:26:32,640 --> 00:26:35,359
Speaker 7: are adults to speak in other places like public parks

459
00:26:35,480 --> 00:26:39,040
Speaker 7: on public streets, and even though the court held the

460
00:26:39,040 --> 00:26:42,320
Speaker 7: student's speech there, which was the wearing of black armband

461
00:26:42,440 --> 00:26:46,720
Speaker 7: that protested the a dumb war, was presumptively protected, and

462
00:26:46,880 --> 00:26:49,879
Speaker 7: also said that student speech could be regulated if it

463
00:26:49,920 --> 00:26:54,080
Speaker 7: falls into two narrow categories, One it substantially disrupts the

464
00:26:54,080 --> 00:26:57,280
Speaker 7: school environment, or two it invades the rights of others

465
00:26:57,680 --> 00:27:01,000
Speaker 7: on campus. Tinker is best known for that first part,

466
00:27:01,119 --> 00:27:05,240
Speaker 7: the substantial disruption standards, and the court applied it in

467
00:27:05,320 --> 00:27:07,960
Speaker 7: Tinker and said there wasn't any when the students wore

468
00:27:07,960 --> 00:27:11,720
Speaker 7: their sort of passive armbands. In subsequent cases it has

469
00:27:11,800 --> 00:27:15,240
Speaker 7: not applied that standard. It has ruled against students, to

470
00:27:15,320 --> 00:27:17,800
Speaker 7: be sure, but it hasn't really fleshed out what the

471
00:27:17,840 --> 00:27:19,720
Speaker 7: substantial disruption standards give.

472
00:27:21,520 --> 00:27:26,800
Speaker 2: Is this newly conservative court with the six member super

473
00:27:26,800 --> 00:27:31,239
Speaker 2: conservative majority, likely to follow the Tinker case and the

474
00:27:31,240 --> 00:27:35,560
Speaker 2: cases that follow it, or could they decide to go

475
00:27:35,640 --> 00:27:36,840
Speaker 2: off in a different direction.

476
00:27:37,440 --> 00:27:39,840
Speaker 7: It's hard to say, obviously, right, but this is a court,

477
00:27:39,920 --> 00:27:43,760
Speaker 7: the Roberts Court, that views itself as very protective of

478
00:27:44,040 --> 00:27:46,760
Speaker 7: freedom of speech or very supportive of freedom of speech.

479
00:27:47,200 --> 00:27:49,880
Speaker 7: There is that recent case I mentioned where they sided

480
00:27:49,920 --> 00:27:53,639
Speaker 7: with the students, indicating that, you know, school officials should

481
00:27:54,040 --> 00:27:56,800
Speaker 7: be aware that there are limits to their authority, right,

482
00:27:57,400 --> 00:28:00,320
Speaker 7: but those limits applied outside the school context. You've been

483
00:28:00,359 --> 00:28:04,480
Speaker 7: on school premises, when you're conducting classes, or you're otherwise

484
00:28:04,600 --> 00:28:07,800
Speaker 7: on the school ground. The court's decisions support a fair

485
00:28:07,880 --> 00:28:12,840
Speaker 7: measure of authority to regulate students speech. So it'd be

486
00:28:12,840 --> 00:28:15,920
Speaker 7: an interesting case. You know, it's sort of cuts right

487
00:28:15,960 --> 00:28:19,560
Speaker 7: into sort of a culture wars on gender identity. Some

488
00:28:19,600 --> 00:28:22,159
Speaker 7: of the stuff that's been going on on university campuses

489
00:28:22,880 --> 00:28:25,760
Speaker 7: is related to this concern about you know, when you

490
00:28:25,880 --> 00:28:28,480
Speaker 7: use the beach that offends people based on their identity,

491
00:28:28,480 --> 00:28:31,399
Speaker 7: whether it's religious, or gender or whatever, is that a

492
00:28:31,400 --> 00:28:35,120
Speaker 7: form of harassment? You know, are students required to sort

493
00:28:35,119 --> 00:28:38,520
Speaker 7: of be subjected to that speech on the university campus

494
00:28:38,600 --> 00:28:42,760
Speaker 7: or in this case, on school grounds. On the other hand, right,

495
00:28:42,800 --> 00:28:45,280
Speaker 7: if you create a rule that says anytime someone says

496
00:28:45,320 --> 00:28:49,080
Speaker 7: something offensive to another person, they can be disciplined, you know,

497
00:28:49,120 --> 00:28:51,640
Speaker 7: I would think the Supreme Court, the current court, would

498
00:28:52,080 --> 00:28:53,960
Speaker 7: bridle at that sort of rule. Of course.

499
00:28:54,720 --> 00:28:59,360
Speaker 2: Representing the student here is the Alliance Defending Freedom, which

500
00:28:59,400 --> 00:29:04,160
Speaker 2: is a conservative Christian legal group. How would you describe

501
00:29:04,200 --> 00:29:05,040
Speaker 2: their mission.

502
00:29:05,520 --> 00:29:08,240
Speaker 7: I'd leave it to them to describe their own mission.

503
00:29:08,520 --> 00:29:10,720
Speaker 7: They are involved in a lot of you know, obviously

504
00:29:10,720 --> 00:29:14,520
Speaker 7: religious liberty cases, but also the intersection between freedom of

505
00:29:14,560 --> 00:29:19,800
Speaker 7: speech and religious liberty, and so you know, I'm not

506
00:29:19,880 --> 00:29:22,560
Speaker 7: surprised to see them involved in a case like this.

507
00:29:23,320 --> 00:29:26,600
Speaker 2: The student's lawyers said they're going to pursue a further

508
00:29:26,680 --> 00:29:30,040
Speaker 2: appeal and they could either ask the full First Circuit

509
00:29:30,680 --> 00:29:33,600
Speaker 2: to hear the case on bank or they could ask

510
00:29:33,640 --> 00:29:35,600
Speaker 2: the Supreme Court to hear it. I mean, do you

511
00:29:35,600 --> 00:29:37,640
Speaker 2: think that the full First Circuit will take it?

512
00:29:38,120 --> 00:29:41,000
Speaker 7: I don't know. You know, it's an opinion. That's the

513
00:29:41,120 --> 00:29:45,960
Speaker 7: seventy pages long First Circuits opinion. It canvasses very carefully,

514
00:29:46,360 --> 00:29:49,360
Speaker 7: nearly all, if not all, of the lower court decisions

515
00:29:49,440 --> 00:29:53,920
Speaker 7: on speech on T shirts or related to this particular

516
00:29:54,000 --> 00:29:57,600
Speaker 7: issue right speech that sort of denigrates based on a

517
00:29:57,680 --> 00:30:01,959
Speaker 7: characteristic or identity. So it's careful in that sense. It

518
00:30:02,000 --> 00:30:04,440
Speaker 7: does not do what the District Court had done, which

519
00:30:04,600 --> 00:30:07,160
Speaker 7: was to base its decision on that part of the

520
00:30:07,160 --> 00:30:11,000
Speaker 7: Thinker case. It says if students speech quote invades the

521
00:30:11,040 --> 00:30:14,880
Speaker 7: rights of others close quote, then it can be subject

522
00:30:15,120 --> 00:30:18,760
Speaker 7: to discipline and relied instead on the other part of

523
00:30:18,800 --> 00:30:22,640
Speaker 7: thinker that says, well, if speech may cause substantial disruption

524
00:30:22,760 --> 00:30:25,600
Speaker 7: to learning environment, it can be regulated on that basis.

525
00:30:26,000 --> 00:30:29,680
Speaker 7: So to the extent they have shifted the grounds there, right,

526
00:30:29,720 --> 00:30:33,640
Speaker 7: maybe it's a safer decision, but I would certainly expect

527
00:30:33,640 --> 00:30:36,400
Speaker 7: it to be appealed, maybe to the full First Circuit

528
00:30:36,600 --> 00:30:38,520
Speaker 7: and probably to the Supreme Court.

529
00:30:38,840 --> 00:30:43,880
Speaker 2: This is one of a number of cases challenging school

530
00:30:43,960 --> 00:30:49,239
Speaker 2: policies aimed at protecting LGBTQ students. Would you say there

531
00:30:49,240 --> 00:30:52,640
Speaker 2: are a lot of cases or just selective cases.

532
00:30:53,280 --> 00:30:54,520
Speaker 7: I don't know that. I'd say there are a lot

533
00:30:54,520 --> 00:30:57,560
Speaker 7: of cases like this, but the First Circuit canvas is

534
00:30:57,600 --> 00:31:00,400
Speaker 7: some of the cases that have come up, and relatively

535
00:31:00,480 --> 00:31:03,800
Speaker 7: recent years. There was a case involving a student who

536
00:31:03,960 --> 00:31:06,640
Speaker 7: wore a T shirt that said, quote be happy, not gay,

537
00:31:07,040 --> 00:31:09,960
Speaker 7: and the court in that case said there just wasn't

538
00:31:09,960 --> 00:31:14,480
Speaker 7: any evidence of substantial disruption based on the statement.

539
00:31:14,960 --> 00:31:15,120
Speaker 9: Right.

540
00:31:15,120 --> 00:31:17,680
Speaker 7: It took into account how derogatory is a statement, but

541
00:31:17,760 --> 00:31:22,240
Speaker 7: ultimately it said there's no material disruption. There have been

542
00:31:22,280 --> 00:31:24,760
Speaker 7: others that There have been other cases in the Ninth Circuit,

543
00:31:24,800 --> 00:31:28,280
Speaker 7: for example, with respect to speech that was alleged to

544
00:31:28,280 --> 00:31:32,200
Speaker 7: be derogatory with respect to occays in lesbians. So I

545
00:31:32,200 --> 00:31:34,600
Speaker 7: can't stay they're rare, but I don't know how frequent

546
00:31:34,800 --> 00:31:38,760
Speaker 7: they are. There are very frequent to dates about T shirts.

547
00:31:39,040 --> 00:31:41,640
Speaker 7: There's sort of a cottage industry of T shirts, a

548
00:31:41,720 --> 00:31:46,280
Speaker 7: litigation out there that involves this kind of speech, Confederate

549
00:31:46,320 --> 00:31:51,120
Speaker 7: flag imagery, images of guns, political speech of all sorts.

550
00:31:51,520 --> 00:31:54,480
Speaker 7: So in that sense, this case is not unusual.

551
00:31:55,160 --> 00:31:57,680
Speaker 2: Maybe the dress code should just say no T shirts

552
00:31:57,680 --> 00:31:59,520
Speaker 2: and that would solve somebody these problems.

553
00:32:00,240 --> 00:32:03,960
Speaker 7: Right, Requiring student uniform is something that would do away

554
00:32:04,440 --> 00:32:07,000
Speaker 7: with this part of students speech litigation for.

555
00:32:06,960 --> 00:32:10,360
Speaker 2: Sure, from cheerleaders to T shirts. We'll see if this

556
00:32:10,520 --> 00:32:13,719
Speaker 2: case is one the Supreme Court takes. Thanks so much, Tim.

557
00:32:14,120 --> 00:32:17,280
Speaker 2: That's Professor Timothy Zick of William and Mary Law School.

558
00:32:18,120 --> 00:32:22,080
Speaker 2: In other legal news today, House Republicans want the tapes.

559
00:32:22,440 --> 00:32:25,400
Speaker 2: They're moving forward with their push to hold Attorney General

560
00:32:25,480 --> 00:32:29,440
Speaker 2: Merrick Garland in contempt of Congress for not turning over

561
00:32:29,480 --> 00:32:33,120
Speaker 2: the tapes of President Biden's interview with the special counsel

562
00:32:33,560 --> 00:32:38,719
Speaker 2: investigating alleged mishandling of classified documents. The transcripts of the

563
00:32:38,720 --> 00:32:42,760
Speaker 2: interview have already been made public, but House Republicans, led

564
00:32:42,800 --> 00:32:46,760
Speaker 2: by Congressman James Comer of Kentucky, are eager to get

565
00:32:46,800 --> 00:32:50,840
Speaker 2: their hands on the actual audio recordings of those conversations.

566
00:32:51,480 --> 00:32:54,800
Speaker 10: Loverstite Committee February twenty seventh subpoena required the Department of

567
00:32:54,920 --> 00:32:58,480
Speaker 10: Justice to produce audio recordings of President Biden's interview with

568
00:32:58,520 --> 00:33:02,640
Speaker 10: Special Counsel Robert are regarding the President's mishandling and improper

569
00:33:02,680 --> 00:33:06,720
Speaker 10: disclosure of classified materials. The Department failed to produce them.

570
00:33:07,280 --> 00:33:09,680
Speaker 10: The Oversught Committee held a markup to consider a report

571
00:33:09,720 --> 00:33:12,840
Speaker 10: holding Attorney General Merrick Garland in contempt of Congress, and

572
00:33:12,880 --> 00:33:15,400
Speaker 10: favorably passed that report today.

573
00:33:15,480 --> 00:33:18,720
Speaker 2: During a markup of the contempt resolution against the Attorney

574
00:33:18,760 --> 00:33:23,000
Speaker 2: General in the House Rules Committee, Comer expressed concerns that

575
00:33:23,040 --> 00:33:25,400
Speaker 2: those transcripts may be inaccurate.

576
00:33:25,960 --> 00:33:29,200
Speaker 10: It is insufficient to simply take the Justice Department at

577
00:33:29,200 --> 00:33:32,640
Speaker 10: its word that the transcripts have not been altered.

578
00:33:32,960 --> 00:33:38,120
Speaker 2: Democratic Congressman Jamie Raskin said Republican's previous attempts to go

579
00:33:38,160 --> 00:33:40,360
Speaker 2: after Merrick Garland have gone nowhere.

580
00:33:40,880 --> 00:33:44,160
Speaker 9: They want to listen to the book on tape. In

581
00:33:44,240 --> 00:33:47,800
Speaker 9: a last ditch attempt to blame a cabinet member for

582
00:33:47,880 --> 00:33:51,800
Speaker 9: the spectacular failure of their Laughing Stock impeachment drive.

583
00:33:52,360 --> 00:33:55,000
Speaker 2: And that's it for this edition of the Bloomberg Law Podcast.

584
00:33:55,360 --> 00:33:57,720
Speaker 2: Remember you've can always get the latest legal news by

585
00:33:57,760 --> 00:34:01,600
Speaker 2: subscribing and listening to the show on Apple Podcasts, Spotify,

586
00:34:01,880 --> 00:34:05,720
Speaker 2: and at Bloomberg dot com, slash podcast, slash Law. I'm

587
00:34:05,800 --> 00:34:08,240
Speaker 2: June Grosso and this is Bloomberg