Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.
Speaker 2: Special counsel David Wise took a victory lap of sorts
Speaker 2: after the first conviction of the child of a sitting president.
Speaker 3: While there has been much testimony about the defendant's abuse
Speaker 3: of drugs and alcohol, ultimately this case was not just
Speaker 3: about addiction, a disease that haunts families across the United States,
Speaker 3: including Hunter Biden's family. This case was about the illegal
Speaker 3: choices defendant made while in the throes of addiction.
Speaker 2: After less than three hours of deliberations, a jury convicted
Speaker 2: Hunter Biden of three counts of violating federal gun laws
Speaker 2: for illegally checking a box on a form stating that
Speaker 2: he wasn't an active drug user at the time he
Speaker 2: bought a firearm. After the verdict, President Joe Biden said
Speaker 2: in a statement that he would accept the outcome and
Speaker 2: continue to respect the judicial process as Hunter considers an appeal.
Speaker 2: And defense attorney Abbey Lowell also said they would continue
Speaker 2: to vigorously pursue all the legal challenges available. Joining me
Speaker 2: is former federal prosecutor Michael Weinstein, a partner at Cole Shots.
Speaker 2: Michael What's your initial reaction to the verdict not surprised.
Speaker 4: The government had the documents and the testimony which got
Speaker 4: them over the hurdle for a guilty verdict. Putting aside
Speaker 4: the legal case, I think it's a sad human story.
Speaker 4: It's sad for the family, whether or not you like
Speaker 4: his father's politics or not. It just reflects how deeply
Speaker 4: people go when they're addicted, whether you're Republican, independent, liberal, Democratic,
Speaker 4: or otherwise. It really shows the throes of problems that
Speaker 4: occur when people have addictions, and that's on a human level.
Speaker 2: Did the defense arguments about the form about Biden not
Speaker 2: knowingly violating the law? I mean, did they carry any
Speaker 2: weight or was their only hope jury nullification.
Speaker 4: I don't think it carried much weight. Clearly, a three
Speaker 4: hour decision by the jury reflects that. I think the
Speaker 4: jury just discounted that the.
Speaker 2: Prosecution seemed to really drag Hunter Biden through the mud,
Speaker 2: not only the testimony of his ex wife, ex lovers,
Speaker 2: but pictures of him half naked with a crack pipe,
Speaker 2: and the prosecutor in the closing argument said the evidence
Speaker 2: was personal, it was ugly, and it was overwhelming, but
Speaker 2: it was also absolutely necessary. Was it all absolutely necessary?
Speaker 4: It was a lot. It seemed excessive at times, and
Speaker 4: it certainly shows the frailty of mister Biden, and you
Speaker 4: know the depths of his addictions at the time. Whether
Speaker 4: or not it had a significant impact on the jury unclear,
Speaker 4: but at times it seemed like it was a little
Speaker 4: heavy handed.
Speaker 2: Everyone seemed to agree that the defense made a mistake
Speaker 2: calling Naomi Biden to the stand because on cross the
Speaker 2: prosecution presented her with texts showing some strange, unexplainable behavior
Speaker 2: by Hunter Biden. But what else could the defense have done?
Speaker 2: Do you see anything else that the defense could have done.
Speaker 4: Look, they were in a difficult position. Their hands were
Speaker 4: tied to a great degree, and so their defense strategy
Speaker 4: is somewhat limited, and that might have been one of
Speaker 4: the only moves they could try. But clearly it didn't work.
Speaker 2: Could Hunter Biden taking the stand have made a difference?
Speaker 2: So he may be asking himself that.
Speaker 4: He might be asking himself that, but remember he's got
Speaker 4: another more significant and more serious case that's pending in California,
Speaker 4: and so to have him on the stand, expose him
Speaker 4: to cross examination, I think was just too dangerous.
Speaker 2: Three jurors who spoke to CNN after they reached a
Speaker 2: guilty version said they believed they had no choice but
Speaker 2: to find Hunter Biden guilty, but said they questioned whether
Speaker 2: the criminal case ever should have been brought against Biden.
Speaker 2: One juror said the case seemed like a waste of
Speaker 2: taxpayer dollars.
Speaker 4: It's an interesting perspective, and certainly commentators are going to,
Speaker 4: you know, latch onto that pretty quickly. But the case
Speaker 4: was brought, and it was tried, and the conviction was obtained,
Speaker 4: and so, you know, should it have been And you know,
Speaker 4: whether or not politics played a role in this, you know,
Speaker 4: we may not know so clearly.
Speaker 2: One of the jurors who spoke to CNN said, the
Speaker 2: vote was six to six last night and it was
Speaker 2: eleven to one this morning. Does that show the jury
Speaker 2: process working? Does that show a juror not able to
Speaker 2: hold out?
Speaker 4: That's a big swing. Certainly, that's a pretty significant swing.
Speaker 4: And I wonder what convinced the five or six that
Speaker 4: you know, went from the no column to the yes column.
Speaker 4: What canvinced them to change their mind? Was it some
Speaker 4: additional evidence that they were viewed for the second or
Speaker 4: third time, or was there some perspective that another juror
Speaker 4: gave which convinced them, And I'm sure at some point
Speaker 4: in the future those people will speak out and we'll
Speaker 4: probably learn a little bit more.
Speaker 2: Can any of that be used in an appeal?
Speaker 4: No, unless it was impropriety by the jury, you know,
Speaker 4: something you know untoward and improper by the jury, or
Speaker 4: if they use some outside evidence, then you would have
Speaker 4: questions that would arise as to the validity of the
Speaker 4: of the verdict.
Speaker 2: So the special Counsel David Weiss took a sort of
Speaker 2: victory lap after the verdict. Was that appropriate when he
Speaker 2: has another case against Biden pending.
Speaker 4: Look, I'm not going to comment on, you know, whether
Speaker 4: or not a special council should be, you know, taking
Speaker 4: victory laps in the midst of other more significant cases.
Speaker 4: I think that's the decision for him and for the
Speaker 4: Justice Department and others to comment on. But you know,
Speaker 4: my rule of thumb, you know, when I worked at
Speaker 4: the Department of Justice, was to be humble, appreciative, and
Speaker 4: to keep your head down and just work and proceed forward.
Speaker 4: On the next case.
Speaker 2: He technically faces twenty five years on all three counts.
Speaker 2: What's a likely sentence would a what's a judge going
Speaker 2: to consider here?
Speaker 4: Yeah, I don't think he's going to end up doing
Speaker 4: any jail time. I think he's a first time offender,
Speaker 4: he has now a job, he's a recovering addict or alcoholic.
Speaker 4: So there are reasons and justifications that the judge can
Speaker 4: use under federal statute which could have his sentence be
Speaker 4: whether it's probation, or whether it's house arrest or something
Speaker 4: in community service or something equivalent to that. I do
Speaker 4: not foresee him going to prison on these charges.
Speaker 2: So the judge said something about sentencing in one hundred
Speaker 2: and twenty days. Should he be sentenced before the California
Speaker 2: trial or after the California trial or does it not matter?
Speaker 4: I think you're right. I think that's a difficult question.
Speaker 4: Traditionally the judges like the sentence between three to four
Speaker 4: months after a jury verdict or a plea, so it
Speaker 4: will be interesting to see whether it actually happens before
Speaker 4: the California case. I don't know if the judge was
Speaker 4: holding off setting a sentencing date for that reason, to
Speaker 4: really look into the issue, but my gut tells me
Speaker 4: they'll schedule sentencing shortly.
Speaker 2: Let's talk about some of the appellate issues. What appellate
Speaker 2: issues do you see?
Speaker 4: Well, there's always evidentiary issues, the admission of evidence, motion
Speaker 4: emotion to exclude certain evidence or exclude certain testimony, whether
Speaker 4: or not documents were entered appropriately, whether the scope and
Speaker 4: breath of the testimony was appropriate. Things of that nature
Speaker 4: are the traditional hallmarks of an appeal.
Speaker 2: After the verdict, some of the jurors question whether a
Speaker 2: case like this should even have been brought. I mean,
Speaker 2: you have a drug addicted person who fills out a
Speaker 2: form and lies to get a gun, but then doesn't
Speaker 2: commit any crimes with that gun, and in fact abandons it.
Speaker 4: I would say it's highly unusual, and unfortunately, I think
Speaker 4: what we saw was political pressure and the optics of
Speaker 4: politics at play, and unfortunately Biden was impacted and how
Speaker 4: to go to trial as a result. I don't think normally,
Speaker 4: if this BAC pattern existed with anybody else but the
Speaker 4: name Biden, it probably would not have been brought. And
Speaker 4: if it was brought, it probably would have been pled
Speaker 4: out for terms that you know are reasonable.
Speaker 2: And tell us about the California tax case, which everyone
Speaker 2: seems to think is much more important.
Speaker 4: Yeah, it's a tax case where he is alleged not
Speaker 4: to have paid taxes on over a million dollars of income,
Speaker 4: and that case can hurt them. That case can really
Speaker 4: hurt them both financially but also from a potential jail
Speaker 4: time that has serious consequences.
Speaker 2: What kind of jail time is associated with that?
Speaker 4: The jail time is contingent upon the tax loss amount
Speaker 4: that the government proves a trial, so he could be
Speaker 4: looking at, you know, a couple of years in prison
Speaker 4: if the tax loss is multimillion dollars.
Speaker 2: He does the Biden case answer the issue of the
Speaker 2: Justice Department being weaponized.
Speaker 4: Well, it's certainly an interesting issue. I like to think
Speaker 4: that the Justice Department is independent and does the right
Speaker 4: thing all the time. Maybe that's just the former DOJ
Speaker 4: lawyer and me saying that, But here it does appear
Speaker 4: that they were influenced by the politics of the day,
Speaker 4: and by bringing the case they can try to show
Speaker 4: a trumpet that they were independent enough to bring a
Speaker 4: case against the sitting president's son. I don't know if
Speaker 4: we have that type of fact pattern in the history
Speaker 4: of the United States, but we seem to be living
Speaker 4: in a time where a lot of things which have
Speaker 4: never occurred previously are happening.
Speaker 2: Would do you understand why Merrick Garland appointed David Weiss
Speaker 2: as Special Counsel after the plea deal fell apart?
Speaker 4: The concern was that because Merrick Garland sits as an
Speaker 4: appointment of the President, that the President could be seen
Speaker 4: as influencing me Eric Gardland's decision making process. As a result,
Speaker 4: instead of him making the decisions in the case whether
Speaker 4: to prosecute, to find a plea or anything related to
Speaker 4: the case, he essentially offloaded it to a Special Council
Speaker 4: and so that the responsibility and independence of the prosecution
Speaker 4: is maintained by having a special counsel handle it.
Speaker 2: But do you think that there's pressure on a special
Speaker 2: Council not to take plea deals but rather to bring
Speaker 2: things to trial and try to get verdicts so they
Speaker 2: can say, look what I've done.
Speaker 4: It's absolutely a great question, June, and I think every
Speaker 4: Special Council probably feels some pressure for a result, whether
Speaker 4: the result is a non prosecution like when Robert Hurr
Speaker 4: found some non prosecution last year, or whether or not
Speaker 4: it's in Lewinsky matter where the Special Council went off
Speaker 4: on other issues, but did find criminal and civil and
Speaker 4: congressional issues to pursue. I do think there's a certain
Speaker 4: mentality that you have to justify your appointment and find something.
Speaker 4: But it's a great question to you.
Speaker 2: So many special councils in such a short period of time.
Speaker 2: Thanks so much, Michael. That's former federal prosecutor Michael Weinstein
Speaker 2: of Coal Shots. Coming up next on the Bloomberg Laws Show,
Speaker 2: a case over a T shirt at a middle school
Speaker 2: goes up to a circuit Court of Appeals. I'm June
Speaker 2: Grosso and you're listening to Bloomberg.
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Speaker 1: This is Bloomberg Law, with June Brusso from Bloomberg Radio.
Speaker 2: A federal appeals court has ruled that a Massachusetts public
Speaker 2: school can ban a student from wearing a T shirt
Speaker 2: reading there are only two genders. Free speech rights can
Speaker 2: collide with the duties of public schools, but the First
Speaker 2: Circuit ruled that the First Amendment does an override a
Speaker 2: public school's obligation to protect LGBTQ plus students from discrimination.
Speaker 2: Student Leam Morrison wore the T shirt in seventh grade
Speaker 2: and sued after school officials concluded the message would demean
Speaker 2: the identity of transgender and gender non conforming students and
Speaker 2: ordered him to either remove the shirt or leave for
Speaker 2: the day. He made a statement explaining his position on
Speaker 2: the website of the lawyers defending him, the conservative Christian
Speaker 2: legal group Alliance Defending Freedom.
Speaker 6: I believe there are only two sexes, male and female.
Speaker 6: And I believe what we call a person's sender, whether
Speaker 6: someone is a man or woman, boy or girl, has
Speaker 6: everything to do with whether they're sex is male or female.
Speaker 6: This view was backed up by science, And even though
Speaker 6: the administrators at my school would like me to think
Speaker 6: I'm a load in holding this view, I know I'm not.
Speaker 2: In the unanimous decision, Chief Judge David Baron wrote, school
Speaker 2: officials must have some margin to make high stakes assessments
Speaker 2: in conditions of inevitable uncertainty. Joining me his first Amendment
Speaker 2: law expert, or Timothy Zick, a professor at William and
Speaker 2: Mary Law School. Tim just tell us about what happened here.
Speaker 7: Yeah, so the twelve year old student was told that
Speaker 7: he could not wear a T shirts I've read as
Speaker 7: he said, there are only two genders. Pursued into a
Speaker 7: provision of a public middle school dress code, and when
Speaker 7: he was told he couldn't wear that shirt, he came
Speaker 7: back a little bit later with a T shirt that
Speaker 7: said the same thing, except only two was covered by
Speaker 7: a piece of cape on which was written the word censored.
Speaker 7: So there are actually two T shirts here. Student was
Speaker 7: told he couldn't wear either one.
Speaker 2: The school's dress code required that quote clothing must not state, imply,
Speaker 2: or depict hate speech or imagery that targets groups based
Speaker 2: on race, ethnicity, gender, sexual orientation, gender identity, religious affiliation,
Speaker 2: or any other classification. Are those kinds of dress codes
Speaker 2: considered constitutional?
Speaker 7: I mean, this court actually addressed whether the code itself constitutional,
Speaker 7: and it said it was. I mean, there's no sort
Speaker 7: of juridical category of hate speech that's uncovered or unprotected
Speaker 7: by the First Amendment. So if this was language that
Speaker 7: was applied and say a statute or a regulation with
Speaker 7: prospective speech staying a public park on a public street
Speaker 7: would be very problematic. But in the context of schools
Speaker 7: and their dress codes, courts have been a little more
Speaker 7: lenient in terms of allowing them to regulate with that
Speaker 7: kind of language and saying, well, it's not unconstitutionally overbroad
Speaker 7: because it only reaches certain kinds of specific speech as
Speaker 7: long as that speech disrupts the school environment, and the
Speaker 7: policy itself can be considered valid. So it is language
Speaker 7: that raises a red flag. Again outside the school context.
Speaker 7: But one of the things about this case that's notable
Speaker 7: is that it takes place within the school setting, and
Speaker 7: the First Amendment applies differently there.
Speaker 2: Did the school just follow its dress code or were
Speaker 2: there other factors that were considered as well.
Speaker 7: Essentially, the school applied its dress code the provision that
Speaker 7: you referred to, referring to hate speech or imagery that
Speaker 7: targets groups based on, among other things, gender identity, and
Speaker 7: the courts agreed with or deferred to the officials at
Speaker 7: the school who thought that the shirt was a commentary
Speaker 7: on gender identity, denigrating students who did not fit the
Speaker 7: gender norm or who were transgender, or what have you.
Speaker 7: So the school's perspective is, you know, we're enforcing our
Speaker 7: dress code. And when the father of a student asked
Speaker 7: what was the problem, that's the explanation they gave him.
Speaker 2: And the student's lawyer said, this isn't about t shirts.
Speaker 2: It's about a public school telling a middle school or
Speaker 2: that he isn't allowed to express a view that differs
Speaker 2: from his own, and that the school actively promotes its
Speaker 2: views about gender through posters and pride events, and it
Speaker 2: encourages students to wear clothing with mess just on the
Speaker 2: same topic. Does that advance the argument in anyway?
Speaker 7: Yeah? I mean so. The baseline rule here is that
Speaker 7: K through twelve students don't shed their constitutional rights to
Speaker 7: free speech at the schoolhouse gate. But those rights aren't
Speaker 7: the same as the rights of students or adults to
Speaker 7: speak and say a public park or on a public street.
Speaker 7: School officials are allowed, you know, to regulate speech if
Speaker 7: it substantially disrupts the school environment or if it invades
Speaker 7: the rights of others on campus. Those are the two
Speaker 7: main limitations, right. What they're not allowed to do is
Speaker 7: to sort of discriminate based on viewpoint, which is what
Speaker 7: the father and the student of alleged they've done here.
Speaker 7: One of the things to note about the cases involves
Speaker 7: the wearing of a T shirt. So this isn't the
Speaker 7: case that says you can't say that there are only
Speaker 7: two genders. It's not a case that disallows or punishes
Speaker 7: the statement of that idea in any context. It's not
Speaker 7: a case about an assignment where a student takes that
Speaker 7: view or anything like that. So from this school's perspective,
Speaker 7: this is about the dress code, and this is about
Speaker 7: a speech that disrupts the school environment, and that's how
Speaker 7: they defended their decision here.
Speaker 2: During the oral arguments, one of the judges contrasted the
Speaker 2: shirt with a brochure handed out by students, saying, unlike
Speaker 2: those pieces of paper, a student couldn't throw away the shirt,
Speaker 2: and a T shirt that is worn all day is
Speaker 2: worn all day. You have to look at it, you
Speaker 2: have to read it. Did that come into the opinion
Speaker 2: that element?
Speaker 7: It definitely did. The Court took into account the form
Speaker 7: of speech right, the manner or the mode in which
Speaker 7: the speech is communicated. And as you say, as the
Speaker 7: court recognized the T shirt visible to any student throughout
Speaker 7: the day who happened to be sitting near or by
Speaker 7: this person or walked at them in the hallway. So
Speaker 7: it's sort of an ever present message. And if you
Speaker 7: view that message as the school officials did, and as
Speaker 7: the Court of Appeals agreed or at least referred to
Speaker 7: their reading of it, it detegrates people based on their identities,
Speaker 7: gender identity, and that the Court said, is linked to
Speaker 7: at least the potential for or a forecast of disruption
Speaker 7: in the school. You might have students wearing contrary or
Speaker 7: opposed T shirt. You might have arguments between the student
Speaker 7: wearing the shirt and others who disagree, and that's the
Speaker 7: basis on which the Court ultimately decides the case. So yes,
Speaker 7: the fact that if a T shirt makes a difference, this.
Speaker 2: Was a unanimous opinion. Explain more about how the judges
Speaker 2: came to the conclusion they did.
Speaker 7: Sure, So it's important, I think, to note that the
Speaker 7: first circuit here doesn't adopt some broad offensive to others
Speaker 7: limit on school speech, under which any statement that hurts
Speaker 7: the feelings of some students could be suppressed or punished.
Speaker 7: This isn't a decision that directly addresses bullying or harassment
Speaker 7: in the school context, both of which I think are
Speaker 7: widely viewed as subject to discipline, and rightly so. It
Speaker 7: doesn't rely on the principle of invading the rights of others.
Speaker 7: That's something the Supreme Court had said school officials could
Speaker 7: take into account. So what this boils down to essentially
Speaker 7: two things. One does the T shirt does the message
Speaker 7: on it demean the gender identities of other students? And two,
Speaker 7: for that reason, could the officials at the school foreseeably
Speaker 7: forecast a disruption of the educational environment? And with respect
Speaker 7: to both of those things. The court says yes, essentially
Speaker 7: deferring to the affidavits and the evidence that the school
Speaker 7: officials had provided.
Speaker 2: Chief Judge David Baron, who wrote the opinion, said, the
Speaker 2: question here is not whether the T shirt should have
Speaker 2: been barred. The question is who should decide whether to
Speaker 2: bar them, educators or federal judges.
Speaker 7: Yeah. I think what the court is saying is we
Speaker 7: don't feel comfortable sort of stepping into the shoes of
Speaker 7: school administrators, either in terms of interpreting what the message
Speaker 7: is on the T sh sure or maybe more importantly,
Speaker 7: forecasting whether it would cause disruption. The principle here would
Speaker 7: be who better knows the school environment and what sorts
Speaker 7: of conversation students have had around gender identity, what sorts
Speaker 7: of conflicts they have had in the past about that,
Speaker 7: What kind of activity might occur if we allowed students
Speaker 7: to wear this T shirt with this message to school.
Speaker 7: So they are differring. That's the sort of technical term,
Speaker 7: if you will, for what's going on here to school officials,
Speaker 7: and one could take issue with that, both with respect
Speaker 7: to what the T shirt says. Of course, the judges
Speaker 7: are empowered to view it and interpret it and with
Speaker 7: respect to what kind of different school officials should get.
Speaker 7: If you go too far with that difference, you essentially
Speaker 7: create a situation where school officials can sort of take
Speaker 7: the view that we can suppress speech that we don't
Speaker 7: agree with, right, even if there's no evidence of disruptions
Speaker 7: and the wearing of it, or it wouldn't be a
Speaker 7: reasonable for cast of disruption. If courts are just going
Speaker 7: to defer to educators on these matters, then students' free
Speaker 7: speech rights are going to suffer.
Speaker 2: Give us a little bit of the background of how
Speaker 2: the Supreme Court has treated these cases of free speech
Speaker 2: in schools.
Speaker 7: Well, the Court started in a case called Tinker in
Speaker 7: nineteen fifty nine with a very broad reputation of student
Speaker 7: free speech rights right only if the speech disrupts the
Speaker 7: educational environment or invade the rights of others can officials
Speaker 7: move to suppress it. But in every decision since, at
Speaker 7: least in most decisions sense, the Court has taken the
Speaker 7: view that school administrators have the power to limit or
Speaker 7: restrict speech if it's say, profane or inappropriate for certain
Speaker 7: younger audiences, or it relates to the curriculum of a school.
Speaker 7: So it's pretty consistently since Tinker been the view of
Speaker 7: the Court that school administrators should have a fair amount
Speaker 7: of leeway with respect to student speech. I will say
Speaker 7: they decided a relatively recent case it wasn't about speech
Speaker 7: in the school, but rather on social media outside the school,
Speaker 7: and in that case they ruled in favor of the student.
Speaker 7: So to the extent that trend was moving in one
Speaker 7: direction at least, there's one case recently where the court
Speaker 7: sided with the student who had used profanity is describing
Speaker 7: her experience with the cheerleading squad. Now I remember, Yeah,
Speaker 7: So it has been a while since the Court took
Speaker 7: a case a student does speech case, and so it
Speaker 7: tried to clear up some confusion about what kind of
Speaker 7: authority school administrators have when the speech takes place off
Speaker 7: campus using a student cell phone, for example, on social media.
Speaker 2: Coming up next on the Bloomberg Law Show, I'll continue
Speaker 2: this conversation with Professor Timothy Zick of William and Mary
Speaker 2: Law School. The attorneys for the students say they'll likely
Speaker 2: pursue a further appeal, but that would acquire either the
Speaker 2: entire First Circuit Court of Appeals or the Supreme Court
Speaker 2: agreeing to hear their case. How likely is that I'm
Speaker 2: June Gross and you're listening to Bloomberg with.
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Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.
Speaker 2: A Massachusetts public school can ban a student from wearing
Speaker 2: a shirt reading there are only two genders. That's according
Speaker 2: to the First Circuit Court of Appeals, which said the
Speaker 2: First Amendment doesn't override a public school's obligation to protect
Speaker 2: LGBTQ plus students from discrimination. Chief Judge David Barron wrote,
Speaker 2: while US Supreme Court President holds that schools must permit
Speaker 2: debate over even the most contentious and controversial topics, that
Speaker 2: doesn't mean that our public schools must be a similar,
Speaker 2: unregulated place. The opinion offers more clarity on how the
Speaker 2: First Amendment collides with public school duties under a standard
Speaker 2: set in the nineteen sixty nine Tinker case at the
Speaker 2: US Supreme Court. I've been talking to Professor Timothy Zick
Speaker 2: of William and Mary Law School. Before we go any further,
Speaker 2: Tim tell us about the Tinker case.
Speaker 7: Yeah. So, in Tinker versus Des Moines Independent Community School
Speaker 7: District in nineteen sixty nine, the Court said that students
Speaker 7: do not shed their constitutional rights to freedom of speech
Speaker 7: at the schoolhouse gate, but it also made clear those
Speaker 7: rights are not the same as the rights of students
Speaker 7: are adults to speak in other places like public parks
Speaker 7: on public streets, and even though the court held the
Speaker 7: student's speech there, which was the wearing of black armband
Speaker 7: that protested the a dumb war, was presumptively protected, and
Speaker 7: also said that student speech could be regulated if it
Speaker 7: falls into two narrow categories, One it substantially disrupts the
Speaker 7: school environment, or two it invades the rights of others
Speaker 7: on campus. Tinker is best known for that first part,
Speaker 7: the substantial disruption standards, and the court applied it in
Speaker 7: Tinker and said there wasn't any when the students wore
Speaker 7: their sort of passive armbands. In subsequent cases it has
Speaker 7: not applied that standard. It has ruled against students, to
Speaker 7: be sure, but it hasn't really fleshed out what the
Speaker 7: substantial disruption standards give.
Speaker 2: Is this newly conservative court with the six member super
Speaker 2: conservative majority, likely to follow the Tinker case and the
Speaker 2: cases that follow it, or could they decide to go
Speaker 2: off in a different direction.
Speaker 7: It's hard to say, obviously, right, but this is a court,
Speaker 7: the Roberts Court, that views itself as very protective of
Speaker 7: freedom of speech or very supportive of freedom of speech.
Speaker 7: There is that recent case I mentioned where they sided
Speaker 7: with the students, indicating that, you know, school officials should
Speaker 7: be aware that there are limits to their authority, right,
Speaker 7: but those limits applied outside the school context. You've been
Speaker 7: on school premises, when you're conducting classes, or you're otherwise
Speaker 7: on the school ground. The court's decisions support a fair
Speaker 7: measure of authority to regulate students speech. So it'd be
Speaker 7: an interesting case. You know, it's sort of cuts right
Speaker 7: into sort of a culture wars on gender identity. Some
Speaker 7: of the stuff that's been going on on university campuses
Speaker 7: is related to this concern about you know, when you
Speaker 7: use the beach that offends people based on their identity,
Speaker 7: whether it's religious, or gender or whatever, is that a
Speaker 7: form of harassment? You know, are students required to sort
Speaker 7: of be subjected to that speech on the university campus
Speaker 7: or in this case, on school grounds. On the other hand, right,
Speaker 7: if you create a rule that says anytime someone says
Speaker 7: something offensive to another person, they can be disciplined, you know,
Speaker 7: I would think the Supreme Court, the current court, would
Speaker 7: bridle at that sort of rule. Of course.
Speaker 2: Representing the student here is the Alliance Defending Freedom, which
Speaker 2: is a conservative Christian legal group. How would you describe
Speaker 2: their mission.
Speaker 7: I'd leave it to them to describe their own mission.
Speaker 7: They are involved in a lot of you know, obviously
Speaker 7: religious liberty cases, but also the intersection between freedom of
Speaker 7: speech and religious liberty, and so you know, I'm not
Speaker 7: surprised to see them involved in a case like this.
Speaker 2: The student's lawyers said they're going to pursue a further
Speaker 2: appeal and they could either ask the full First Circuit
Speaker 2: to hear the case on bank or they could ask
Speaker 2: the Supreme Court to hear it. I mean, do you
Speaker 2: think that the full First Circuit will take it?
Speaker 7: I don't know. You know, it's an opinion. That's the
Speaker 7: seventy pages long First Circuits opinion. It canvasses very carefully,
Speaker 7: nearly all, if not all, of the lower court decisions
Speaker 7: on speech on T shirts or related to this particular
Speaker 7: issue right speech that sort of denigrates based on a
Speaker 7: characteristic or identity. So it's careful in that sense. It
Speaker 7: does not do what the District Court had done, which
Speaker 7: was to base its decision on that part of the
Speaker 7: Thinker case. It says if students speech quote invades the
Speaker 7: rights of others close quote, then it can be subject
Speaker 7: to discipline and relied instead on the other part of
Speaker 7: thinker that says, well, if speech may cause substantial disruption
Speaker 7: to learning environment, it can be regulated on that basis.
Speaker 7: So to the extent they have shifted the grounds there, right,
Speaker 7: maybe it's a safer decision, but I would certainly expect
Speaker 7: it to be appealed, maybe to the full First Circuit
Speaker 7: and probably to the Supreme Court.
Speaker 2: This is one of a number of cases challenging school
Speaker 2: policies aimed at protecting LGBTQ students. Would you say there
Speaker 2: are a lot of cases or just selective cases.
Speaker 7: I don't know that. I'd say there are a lot
Speaker 7: of cases like this, but the First Circuit canvas is
Speaker 7: some of the cases that have come up, and relatively
Speaker 7: recent years. There was a case involving a student who
Speaker 7: wore a T shirt that said, quote be happy, not gay,
Speaker 7: and the court in that case said there just wasn't
Speaker 7: any evidence of substantial disruption based on the statement.
Speaker 9: Right.
Speaker 7: It took into account how derogatory is a statement, but
Speaker 7: ultimately it said there's no material disruption. There have been
Speaker 7: others that There have been other cases in the Ninth Circuit,
Speaker 7: for example, with respect to speech that was alleged to
Speaker 7: be derogatory with respect to occays in lesbians. So I
Speaker 7: can't stay they're rare, but I don't know how frequent
Speaker 7: they are. There are very frequent to dates about T shirts.
Speaker 7: There's sort of a cottage industry of T shirts, a
Speaker 7: litigation out there that involves this kind of speech, Confederate
Speaker 7: flag imagery, images of guns, political speech of all sorts.
Speaker 7: So in that sense, this case is not unusual.
Speaker 2: Maybe the dress code should just say no T shirts
Speaker 2: and that would solve somebody these problems.
Speaker 7: Right, Requiring student uniform is something that would do away
Speaker 7: with this part of students speech litigation for.
Speaker 2: Sure, from cheerleaders to T shirts. We'll see if this
Speaker 2: case is one the Supreme Court takes. Thanks so much, Tim.
Speaker 2: That's Professor Timothy Zick of William and Mary Law School.
Speaker 2: In other legal news today, House Republicans want the tapes.
Speaker 2: They're moving forward with their push to hold Attorney General
Speaker 2: Merrick Garland in contempt of Congress for not turning over
Speaker 2: the tapes of President Biden's interview with the special counsel
Speaker 2: investigating alleged mishandling of classified documents. The transcripts of the
Speaker 2: interview have already been made public, but House Republicans, led
Speaker 2: by Congressman James Comer of Kentucky, are eager to get
Speaker 2: their hands on the actual audio recordings of those conversations.
Speaker 10: Loverstite Committee February twenty seventh subpoena required the Department of
Speaker 10: Justice to produce audio recordings of President Biden's interview with
Speaker 10: Special Counsel Robert are regarding the President's mishandling and improper
Speaker 10: disclosure of classified materials. The Department failed to produce them.
Speaker 10: The Oversught Committee held a markup to consider a report
Speaker 10: holding Attorney General Merrick Garland in contempt of Congress, and
Speaker 10: favorably passed that report today.
Speaker 2: During a markup of the contempt resolution against the Attorney
Speaker 2: General in the House Rules Committee, Comer expressed concerns that
Speaker 2: those transcripts may be inaccurate.
Speaker 10: It is insufficient to simply take the Justice Department at
Speaker 10: its word that the transcripts have not been altered.
Speaker 2: Democratic Congressman Jamie Raskin said Republican's previous attempts to go
Speaker 2: after Merrick Garland have gone nowhere.
Speaker 9: They want to listen to the book on tape. In
Speaker 9: a last ditch attempt to blame a cabinet member for
Speaker 9: the spectacular failure of their Laughing Stock impeachment drive.
Speaker 2: And that's it for this edition of the Bloomberg Law Podcast.
Speaker 2: Remember you've can always get the latest legal news by
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Speaker 2: and at Bloomberg dot com, slash podcast, slash Law. I'm
Speaker 2: June Grosso and this is Bloomberg