WEBVTT - Hunter Biden Is Guilty & Student T-Shirt Banned 0:00:03.200 --> 0:00:08.000 This is Bloomberg Law with June Brusso from Bloomberg Radio. 0:00:11.760 --> 0:00:15.560 Special counsel David Wise took a victory lap of sorts 0:00:15.920 --> 0:00:19.360 after the first conviction of the child of a sitting president. 0:00:20.239 --> 0:00:23.720 While there has been much testimony about the defendant's abuse 0:00:23.760 --> 0:00:28.680 of drugs and alcohol, ultimately this case was not just 0:00:28.840 --> 0:00:34.080 about addiction, a disease that haunts families across the United States, 0:00:34.720 --> 0:00:39.360 including Hunter Biden's family. This case was about the illegal 0:00:39.479 --> 0:00:42.760 choices defendant made while in the throes of addiction. 0:00:44.159 --> 0:00:48.240 After less than three hours of deliberations, a jury convicted 0:00:48.320 --> 0:00:52.080 Hunter Biden of three counts of violating federal gun laws 0:00:52.400 --> 0:00:55.640 for illegally checking a box on a form stating that 0:00:55.720 --> 0:00:58.480 he wasn't an active drug user at the time he 0:00:58.560 --> 0:01:02.600 bought a firearm. After the verdict, President Joe Biden said 0:01:02.600 --> 0:01:05.640 in a statement that he would accept the outcome and 0:01:05.760 --> 0:01:10.320 continue to respect the judicial process as Hunter considers an appeal. 0:01:10.680 --> 0:01:14.000 And defense attorney Abbey Lowell also said they would continue 0:01:14.040 --> 0:01:18.760 to vigorously pursue all the legal challenges available. Joining me 0:01:18.840 --> 0:01:23.200 is former federal prosecutor Michael Weinstein, a partner at Cole Shots. 0:01:23.880 --> 0:01:27.280 Michael What's your initial reaction to the verdict not surprised. 0:01:27.920 --> 0:01:31.960 The government had the documents and the testimony which got 0:01:32.040 --> 0:01:34.959 them over the hurdle for a guilty verdict. Putting aside 0:01:35.040 --> 0:01:38.720 the legal case, I think it's a sad human story. 0:01:39.240 --> 0:01:41.959 It's sad for the family, whether or not you like 0:01:42.160 --> 0:01:46.120 his father's politics or not. It just reflects how deeply 0:01:46.280 --> 0:01:51.920 people go when they're addicted, whether you're Republican, independent, liberal, Democratic, 0:01:52.320 --> 0:01:57.080 or otherwise. It really shows the throes of problems that 0:01:57.160 --> 0:02:01.240 occur when people have addictions, and that's on a human level. 0:02:01.640 --> 0:02:06.560 Did the defense arguments about the form about Biden not 0:02:06.720 --> 0:02:10.840 knowingly violating the law? I mean, did they carry any 0:02:10.919 --> 0:02:13.720 weight or was their only hope jury nullification. 0:02:14.639 --> 0:02:17.480 I don't think it carried much weight. Clearly, a three 0:02:17.560 --> 0:02:21.040 hour decision by the jury reflects that. I think the 0:02:21.120 --> 0:02:23.360 jury just discounted that the. 0:02:23.280 --> 0:02:27.560 Prosecution seemed to really drag Hunter Biden through the mud, 0:02:27.680 --> 0:02:30.760 not only the testimony of his ex wife, ex lovers, 0:02:30.840 --> 0:02:33.680 but pictures of him half naked with a crack pipe, 0:02:34.080 --> 0:02:37.480 and the prosecutor in the closing argument said the evidence 0:02:37.600 --> 0:02:41.080 was personal, it was ugly, and it was overwhelming, but 0:02:41.120 --> 0:02:47.040 it was also absolutely necessary. Was it all absolutely necessary? 0:02:47.919 --> 0:02:50.520 It was a lot. It seemed excessive at times, and 0:02:50.600 --> 0:02:55.000 it certainly shows the frailty of mister Biden, and you 0:02:55.040 --> 0:02:58.320 know the depths of his addictions at the time. Whether 0:02:58.400 --> 0:03:02.119 or not it had a significant impact on the jury unclear, 0:03:02.400 --> 0:03:04.160 but at times it seemed like it was a little 0:03:04.200 --> 0:03:04.760 heavy handed. 0:03:05.080 --> 0:03:08.000 Everyone seemed to agree that the defense made a mistake 0:03:08.120 --> 0:03:11.840 calling Naomi Biden to the stand because on cross the 0:03:11.919 --> 0:03:18.360 prosecution presented her with texts showing some strange, unexplainable behavior 0:03:18.560 --> 0:03:21.720 by Hunter Biden. But what else could the defense have done? 0:03:21.800 --> 0:03:24.240 Do you see anything else that the defense could have done. 0:03:24.720 --> 0:03:27.440 Look, they were in a difficult position. Their hands were 0:03:27.480 --> 0:03:30.200 tied to a great degree, and so their defense strategy 0:03:30.280 --> 0:03:34.120 is somewhat limited, and that might have been one of 0:03:34.120 --> 0:03:37.200 the only moves they could try. But clearly it didn't work. 0:03:37.440 --> 0:03:40.400 Could Hunter Biden taking the stand have made a difference? 0:03:40.400 --> 0:03:42.080 So he may be asking himself that. 0:03:42.600 --> 0:03:44.880 He might be asking himself that, but remember he's got 0:03:44.880 --> 0:03:49.600 another more significant and more serious case that's pending in California, 0:03:49.680 --> 0:03:52.480 and so to have him on the stand, expose him 0:03:52.480 --> 0:03:56.240 to cross examination, I think was just too dangerous. 0:03:56.480 --> 0:03:59.320 Three jurors who spoke to CNN after they reached a 0:03:59.320 --> 0:04:02.240 guilty version said they believed they had no choice but 0:04:02.360 --> 0:04:05.960 to find Hunter Biden guilty, but said they questioned whether 0:04:06.000 --> 0:04:09.560 the criminal case ever should have been brought against Biden. 0:04:10.120 --> 0:04:13.000 One juror said the case seemed like a waste of 0:04:13.080 --> 0:04:14.560 taxpayer dollars. 0:04:14.880 --> 0:04:18.279 It's an interesting perspective, and certainly commentators are going to, 0:04:18.360 --> 0:04:21.080 you know, latch onto that pretty quickly. But the case 0:04:21.240 --> 0:04:25.599 was brought, and it was tried, and the conviction was obtained, 0:04:25.720 --> 0:04:28.839 and so, you know, should it have been And you know, 0:04:28.880 --> 0:04:31.240 whether or not politics played a role in this, you know, 0:04:31.520 --> 0:04:32.760 we may not know so clearly. 0:04:33.640 --> 0:04:36.320 One of the jurors who spoke to CNN said, the 0:04:36.440 --> 0:04:39.320 vote was six to six last night and it was 0:04:39.360 --> 0:04:42.960 eleven to one this morning. Does that show the jury 0:04:43.000 --> 0:04:47.360 process working? Does that show a juror not able to 0:04:47.839 --> 0:04:48.960 hold out? 0:04:49.240 --> 0:04:52.239 That's a big swing. Certainly, that's a pretty significant swing. 0:04:52.279 --> 0:04:55.720 And I wonder what convinced the five or six that 0:04:55.960 --> 0:04:58.839 you know, went from the no column to the yes column. 0:04:59.560 --> 0:05:02.000 What canvinced them to change their mind? Was it some 0:05:02.040 --> 0:05:04.720 additional evidence that they were viewed for the second or 0:05:04.720 --> 0:05:07.799 third time, or was there some perspective that another juror 0:05:07.920 --> 0:05:10.719 gave which convinced them, And I'm sure at some point 0:05:10.720 --> 0:05:12.680 in the future those people will speak out and we'll 0:05:12.720 --> 0:05:14.040 probably learn a little bit more. 0:05:14.320 --> 0:05:16.039 Can any of that be used in an appeal? 0:05:16.720 --> 0:05:19.520 No, unless it was impropriety by the jury, you know, 0:05:19.960 --> 0:05:23.520 something you know untoward and improper by the jury, or 0:05:23.520 --> 0:05:25.919 if they use some outside evidence, then you would have 0:05:26.000 --> 0:05:28.599 questions that would arise as to the validity of the 0:05:28.720 --> 0:05:29.360 of the verdict. 0:05:30.200 --> 0:05:33.400 So the special Counsel David Weiss took a sort of 0:05:33.480 --> 0:05:36.880 victory lap after the verdict. Was that appropriate when he 0:05:36.920 --> 0:05:39.320 has another case against Biden pending. 0:05:39.920 --> 0:05:41.800 Look, I'm not going to comment on, you know, whether 0:05:41.880 --> 0:05:44.200 or not a special council should be, you know, taking 0:05:44.279 --> 0:05:47.760 victory laps in the midst of other more significant cases. 0:05:47.800 --> 0:05:49.640 I think that's the decision for him and for the 0:05:49.760 --> 0:05:53.279 Justice Department and others to comment on. But you know, 0:05:53.440 --> 0:05:55.520 my rule of thumb, you know, when I worked at 0:05:55.520 --> 0:05:59.320 the Department of Justice, was to be humble, appreciative, and 0:05:59.400 --> 0:06:02.480 to keep your head down and just work and proceed forward. 0:06:02.520 --> 0:06:03.200 On the next case. 0:06:03.600 --> 0:06:07.640 He technically faces twenty five years on all three counts. 0:06:08.080 --> 0:06:11.440 What's a likely sentence would a what's a judge going 0:06:11.480 --> 0:06:12.320 to consider here? 0:06:13.000 --> 0:06:14.800 Yeah, I don't think he's going to end up doing 0:06:14.800 --> 0:06:17.560 any jail time. I think he's a first time offender, 0:06:18.279 --> 0:06:21.479 he has now a job, he's a recovering addict or alcoholic. 0:06:21.720 --> 0:06:25.400 So there are reasons and justifications that the judge can 0:06:25.520 --> 0:06:29.279 use under federal statute which could have his sentence be 0:06:29.360 --> 0:06:32.640 whether it's probation, or whether it's house arrest or something 0:06:32.680 --> 0:06:35.520 in community service or something equivalent to that. I do 0:06:35.600 --> 0:06:38.560 not foresee him going to prison on these charges. 0:06:39.080 --> 0:06:41.760 So the judge said something about sentencing in one hundred 0:06:41.800 --> 0:06:45.680 and twenty days. Should he be sentenced before the California 0:06:45.880 --> 0:06:49.400 trial or after the California trial or does it not matter? 0:06:49.680 --> 0:06:52.479 I think you're right. I think that's a difficult question. 0:06:52.680 --> 0:06:55.599 Traditionally the judges like the sentence between three to four 0:06:55.600 --> 0:06:58.960 months after a jury verdict or a plea, so it 0:06:59.000 --> 0:07:01.640 will be interesting to see whether it actually happens before 0:07:01.680 --> 0:07:04.159 the California case. I don't know if the judge was 0:07:04.200 --> 0:07:06.919 holding off setting a sentencing date for that reason, to 0:07:07.000 --> 0:07:09.880 really look into the issue, but my gut tells me 0:07:09.920 --> 0:07:12.240 they'll schedule sentencing shortly. 0:07:12.400 --> 0:07:14.760 Let's talk about some of the appellate issues. What appellate 0:07:14.840 --> 0:07:16.000 issues do you see? 0:07:16.160 --> 0:07:19.600 Well, there's always evidentiary issues, the admission of evidence, motion 0:07:20.120 --> 0:07:23.840 emotion to exclude certain evidence or exclude certain testimony, whether 0:07:23.920 --> 0:07:27.680 or not documents were entered appropriately, whether the scope and 0:07:27.760 --> 0:07:31.800 breath of the testimony was appropriate. Things of that nature 0:07:31.800 --> 0:07:33.920 are the traditional hallmarks of an appeal. 0:07:34.680 --> 0:07:37.680 After the verdict, some of the jurors question whether a 0:07:37.800 --> 0:07:41.600 case like this should even have been brought. I mean, 0:07:41.600 --> 0:07:44.040 you have a drug addicted person who fills out a 0:07:44.080 --> 0:07:48.480 form and lies to get a gun, but then doesn't 0:07:48.480 --> 0:07:52.400 commit any crimes with that gun, and in fact abandons it. 0:07:53.040 --> 0:07:56.800 I would say it's highly unusual, and unfortunately, I think 0:07:56.840 --> 0:08:01.600 what we saw was political pressure and the optics of 0:08:01.800 --> 0:08:08.200 politics at play, and unfortunately Biden was impacted and how 0:08:08.200 --> 0:08:11.280 to go to trial as a result. I don't think normally, 0:08:11.400 --> 0:08:15.120 if this BAC pattern existed with anybody else but the 0:08:15.200 --> 0:08:18.480 name Biden, it probably would not have been brought. And 0:08:18.520 --> 0:08:21.520 if it was brought, it probably would have been pled 0:08:21.560 --> 0:08:24.560 out for terms that you know are reasonable. 0:08:24.960 --> 0:08:28.280 And tell us about the California tax case, which everyone 0:08:28.320 --> 0:08:30.320 seems to think is much more important. 0:08:30.680 --> 0:08:33.600 Yeah, it's a tax case where he is alleged not 0:08:33.720 --> 0:08:37.160 to have paid taxes on over a million dollars of income, 0:08:37.600 --> 0:08:40.240 and that case can hurt them. That case can really 0:08:40.320 --> 0:08:43.760 hurt them both financially but also from a potential jail 0:08:43.840 --> 0:08:45.800 time that has serious consequences. 0:08:46.120 --> 0:08:48.160 What kind of jail time is associated with that? 0:08:49.040 --> 0:08:53.120 The jail time is contingent upon the tax loss amount 0:08:53.240 --> 0:08:56.160 that the government proves a trial, so he could be 0:08:56.240 --> 0:08:58.280 looking at, you know, a couple of years in prison 0:08:58.320 --> 0:09:00.520 if the tax loss is multimillion dollars. 0:09:00.960 --> 0:09:04.640 He does the Biden case answer the issue of the 0:09:04.800 --> 0:09:07.520 Justice Department being weaponized. 0:09:07.160 --> 0:09:09.840 Well, it's certainly an interesting issue. I like to think 0:09:09.880 --> 0:09:13.440 that the Justice Department is independent and does the right 0:09:13.520 --> 0:09:16.840 thing all the time. Maybe that's just the former DOJ 0:09:17.000 --> 0:09:20.520 lawyer and me saying that, But here it does appear 0:09:20.600 --> 0:09:23.800 that they were influenced by the politics of the day, 0:09:24.080 --> 0:09:27.439 and by bringing the case they can try to show 0:09:27.520 --> 0:09:30.560 a trumpet that they were independent enough to bring a 0:09:30.559 --> 0:09:33.400 case against the sitting president's son. I don't know if 0:09:33.400 --> 0:09:35.839 we have that type of fact pattern in the history 0:09:35.880 --> 0:09:38.040 of the United States, but we seem to be living 0:09:38.080 --> 0:09:40.360 in a time where a lot of things which have 0:09:40.480 --> 0:09:42.440 never occurred previously are happening. 0:09:42.559 --> 0:09:47.920 Would do you understand why Merrick Garland appointed David Weiss 0:09:47.960 --> 0:09:51.360 as Special Counsel after the plea deal fell apart? 0:09:51.880 --> 0:09:55.840 The concern was that because Merrick Garland sits as an 0:09:55.880 --> 0:09:58.959 appointment of the President, that the President could be seen 0:09:59.000 --> 0:10:03.920 as influencing me Eric Gardland's decision making process. As a result, 0:10:04.360 --> 0:10:06.960 instead of him making the decisions in the case whether 0:10:07.040 --> 0:10:10.400 to prosecute, to find a plea or anything related to 0:10:10.440 --> 0:10:14.400 the case, he essentially offloaded it to a Special Council 0:10:14.720 --> 0:10:18.599 and so that the responsibility and independence of the prosecution 0:10:18.920 --> 0:10:21.240 is maintained by having a special counsel handle it. 0:10:22.080 --> 0:10:24.640 But do you think that there's pressure on a special 0:10:24.720 --> 0:10:27.480 Council not to take plea deals but rather to bring 0:10:27.559 --> 0:10:29.800 things to trial and try to get verdicts so they 0:10:29.840 --> 0:10:31.679 can say, look what I've done. 0:10:32.080 --> 0:10:36.080 It's absolutely a great question, June, and I think every 0:10:36.120 --> 0:10:41.080 Special Council probably feels some pressure for a result, whether 0:10:41.120 --> 0:10:44.640 the result is a non prosecution like when Robert Hurr 0:10:44.720 --> 0:10:47.640 found some non prosecution last year, or whether or not 0:10:47.760 --> 0:10:51.360 it's in Lewinsky matter where the Special Council went off 0:10:51.400 --> 0:10:55.640 on other issues, but did find criminal and civil and 0:10:55.760 --> 0:10:58.840 congressional issues to pursue. I do think there's a certain 0:10:59.080 --> 0:11:03.079 mentality that you have to justify your appointment and find something. 0:11:03.280 --> 0:11:04.559 But it's a great question to you. 0:11:05.160 --> 0:11:08.960 So many special councils in such a short period of time. 0:11:09.160 --> 0:11:13.320 Thanks so much, Michael. That's former federal prosecutor Michael Weinstein 0:11:13.400 --> 0:11:17.000 of Coal Shots. Coming up next on the Bloomberg Laws Show, 0:11:17.520 --> 0:11:20.120 a case over a T shirt at a middle school 0:11:20.559 --> 0:11:23.800 goes up to a circuit Court of Appeals. I'm June 0:11:23.800 --> 0:11:25.559 Grosso and you're listening to Bloomberg. 0:11:26.120 --> 0:11:29.280 This is the Bloomberg Green Report. The world has had 0:11:29.320 --> 0:11:31.800 a full year of record heat, and experts say we 0:11:31.840 --> 0:11:35.040 can expect more. It became official late last week that 0:11:35.120 --> 0:11:38.559 May was the twelfth consecutive month of record breaking temperatures, 0:11:38.720 --> 0:11:41.679 and experts say more heat waves are likely this summer. 0:11:42.040 --> 0:11:46.400 Europe's Copernicus Climate Change Service as overall global temperatures last 0:11:46.440 --> 0:11:50.160 month were one point fifty two degrees celsius above historical 0:11:50.200 --> 0:11:53.720 averages and mark the hottest May on record. There was 0:11:53.840 --> 0:11:57.400 catastrophic heat from California to New Delhi, and it led 0:11:57.440 --> 0:12:01.600 to some fatalities. Climate change is exacerbating the impact of 0:12:01.679 --> 0:12:05.200 extreme weather. The global average temperature for the last twelve 0:12:05.200 --> 0:12:08.360 months was one point sixty three degree celsius higher than 0:12:08.400 --> 0:12:11.520 pre industrial levels, and that is above the threshold that 0:12:11.600 --> 0:12:15.960 scientists say threatens life on the planet. The northern hemisphere 0:12:16.000 --> 0:12:19.840 is bracing for another extreme summer after scorching heat threatened 0:12:19.840 --> 0:12:23.760 the health and livelihoods of millions last year. Jeff Bellinger, 0:12:23.880 --> 0:12:27.920 Bloomberg Radio. 0:12:28.720 --> 0:12:33.520 This is Bloomberg Law, with June Brusso from Bloomberg Radio. 0:12:36.120 --> 0:12:39.680 A federal appeals court has ruled that a Massachusetts public 0:12:39.760 --> 0:12:43.200 school can ban a student from wearing a T shirt 0:12:43.280 --> 0:12:47.880 reading there are only two genders. Free speech rights can 0:12:48.040 --> 0:12:51.320 collide with the duties of public schools, but the First 0:12:51.360 --> 0:12:54.960 Circuit ruled that the First Amendment does an override a 0:12:54.960 --> 0:13:00.760 public school's obligation to protect LGBTQ plus students from discrimination. 0:13:01.520 --> 0:13:04.800 Student Leam Morrison wore the T shirt in seventh grade 0:13:04.840 --> 0:13:08.960 and sued after school officials concluded the message would demean 0:13:09.080 --> 0:13:13.760 the identity of transgender and gender non conforming students and 0:13:13.920 --> 0:13:16.480 ordered him to either remove the shirt or leave for 0:13:16.520 --> 0:13:20.040 the day. He made a statement explaining his position on 0:13:20.120 --> 0:13:23.880 the website of the lawyers defending him, the conservative Christian 0:13:23.960 --> 0:13:26.320 legal group Alliance Defending Freedom. 0:13:26.679 --> 0:13:29.680 I believe there are only two sexes, male and female. 0:13:29.800 --> 0:13:32.520 And I believe what we call a person's sender, whether 0:13:32.559 --> 0:13:35.199 someone is a man or woman, boy or girl, has 0:13:35.240 --> 0:13:37.840 everything to do with whether they're sex is male or female. 0:13:38.400 --> 0:13:41.040 This view was backed up by science, And even though 0:13:41.040 --> 0:13:43.280 the administrators at my school would like me to think 0:13:43.280 --> 0:13:45.880 I'm a load in holding this view, I know I'm not. 0:13:46.559 --> 0:13:50.920 In the unanimous decision, Chief Judge David Baron wrote, school 0:13:50.960 --> 0:13:55.280 officials must have some margin to make high stakes assessments 0:13:55.320 --> 0:13:59.440 in conditions of inevitable uncertainty. Joining me his first Amendment 0:13:59.520 --> 0:14:02.400 law expert, or Timothy Zick, a professor at William and 0:14:02.440 --> 0:14:05.600 Mary Law School. Tim just tell us about what happened here. 0:14:06.600 --> 0:14:10.040 Yeah, so the twelve year old student was told that 0:14:10.120 --> 0:14:12.440 he could not wear a T shirts I've read as 0:14:12.440 --> 0:14:15.880 he said, there are only two genders. Pursued into a 0:14:15.920 --> 0:14:19.360 provision of a public middle school dress code, and when 0:14:19.400 --> 0:14:21.280 he was told he couldn't wear that shirt, he came 0:14:21.320 --> 0:14:23.800 back a little bit later with a T shirt that 0:14:23.880 --> 0:14:26.840 said the same thing, except only two was covered by 0:14:26.840 --> 0:14:29.360 a piece of cape on which was written the word censored. 0:14:29.960 --> 0:14:32.880 So there are actually two T shirts here. Student was 0:14:32.880 --> 0:14:34.080 told he couldn't wear either one. 0:14:34.400 --> 0:14:38.920 The school's dress code required that quote clothing must not state, imply, 0:14:39.320 --> 0:14:42.600 or depict hate speech or imagery that targets groups based 0:14:42.600 --> 0:14:48.680 on race, ethnicity, gender, sexual orientation, gender identity, religious affiliation, 0:14:48.920 --> 0:14:52.600 or any other classification. Are those kinds of dress codes 0:14:53.640 --> 0:14:55.360 considered constitutional? 0:14:56.200 --> 0:15:01.160 I mean, this court actually addressed whether the code itself constitutional, 0:15:01.160 --> 0:15:03.760 and it said it was. I mean, there's no sort 0:15:03.760 --> 0:15:07.800 of juridical category of hate speech that's uncovered or unprotected 0:15:07.800 --> 0:15:11.120 by the First Amendment. So if this was language that 0:15:11.200 --> 0:15:15.040 was applied and say a statute or a regulation with 0:15:15.160 --> 0:15:17.640 prospective speech staying a public park on a public street 0:15:17.680 --> 0:15:21.560 would be very problematic. But in the context of schools 0:15:21.960 --> 0:15:24.400 and their dress codes, courts have been a little more 0:15:24.480 --> 0:15:28.560 lenient in terms of allowing them to regulate with that 0:15:28.680 --> 0:15:32.640 kind of language and saying, well, it's not unconstitutionally overbroad 0:15:32.720 --> 0:15:36.960 because it only reaches certain kinds of specific speech as 0:15:37.000 --> 0:15:40.160 long as that speech disrupts the school environment, and the 0:15:40.200 --> 0:15:45.160 policy itself can be considered valid. So it is language 0:15:45.200 --> 0:15:50.040 that raises a red flag. Again outside the school context. 0:15:50.040 --> 0:15:52.320 But one of the things about this case that's notable 0:15:52.440 --> 0:15:54.960 is that it takes place within the school setting, and 0:15:55.200 --> 0:15:56.920 the First Amendment applies differently there. 0:15:57.600 --> 0:16:00.520 Did the school just follow its dress code or were 0:16:00.560 --> 0:16:04.520 there other factors that were considered as well. 0:16:04.800 --> 0:16:08.440 Essentially, the school applied its dress code the provision that 0:16:08.480 --> 0:16:11.560 you referred to, referring to hate speech or imagery that 0:16:11.640 --> 0:16:16.160 targets groups based on, among other things, gender identity, and 0:16:16.520 --> 0:16:20.520 the courts agreed with or deferred to the officials at 0:16:20.520 --> 0:16:23.840 the school who thought that the shirt was a commentary 0:16:24.000 --> 0:16:28.720 on gender identity, denigrating students who did not fit the 0:16:28.760 --> 0:16:31.240 gender norm or who were transgender, or what have you. 0:16:31.960 --> 0:16:35.080 So the school's perspective is, you know, we're enforcing our 0:16:35.160 --> 0:16:37.160 dress code. And when the father of a student asked 0:16:37.360 --> 0:16:39.800 what was the problem, that's the explanation they gave him. 0:16:40.680 --> 0:16:44.720 And the student's lawyer said, this isn't about t shirts. 0:16:44.720 --> 0:16:47.360 It's about a public school telling a middle school or 0:16:47.360 --> 0:16:49.960 that he isn't allowed to express a view that differs 0:16:49.960 --> 0:16:53.720 from his own, and that the school actively promotes its 0:16:53.800 --> 0:16:57.520 views about gender through posters and pride events, and it 0:16:57.600 --> 0:17:00.560 encourages students to wear clothing with mess just on the 0:17:00.600 --> 0:17:03.920 same topic. Does that advance the argument in anyway? 0:17:04.800 --> 0:17:07.480 Yeah? I mean so. The baseline rule here is that 0:17:07.720 --> 0:17:10.720 K through twelve students don't shed their constitutional rights to 0:17:10.840 --> 0:17:14.040 free speech at the schoolhouse gate. But those rights aren't 0:17:14.040 --> 0:17:16.280 the same as the rights of students or adults to 0:17:16.359 --> 0:17:19.639 speak and say a public park or on a public street. 0:17:20.240 --> 0:17:23.800 School officials are allowed, you know, to regulate speech if 0:17:23.840 --> 0:17:27.479 it substantially disrupts the school environment or if it invades 0:17:27.520 --> 0:17:29.600 the rights of others on campus. Those are the two 0:17:29.640 --> 0:17:34.120 main limitations, right. What they're not allowed to do is 0:17:34.200 --> 0:17:38.000 to sort of discriminate based on viewpoint, which is what 0:17:38.119 --> 0:17:40.280 the father and the student of alleged they've done here. 0:17:40.800 --> 0:17:42.840 One of the things to note about the cases involves 0:17:42.880 --> 0:17:44.560 the wearing of a T shirt. So this isn't the 0:17:44.600 --> 0:17:47.560 case that says you can't say that there are only 0:17:47.560 --> 0:17:50.960 two genders. It's not a case that disallows or punishes 0:17:51.080 --> 0:17:54.399 the statement of that idea in any context. It's not 0:17:54.760 --> 0:17:57.320 a case about an assignment where a student takes that 0:17:57.400 --> 0:18:00.960 view or anything like that. So from this school's perspective, 0:18:01.040 --> 0:18:03.240 this is about the dress code, and this is about 0:18:03.520 --> 0:18:06.560 a speech that disrupts the school environment, and that's how 0:18:07.000 --> 0:18:09.080 they defended their decision here. 0:18:09.440 --> 0:18:13.240 During the oral arguments, one of the judges contrasted the 0:18:13.280 --> 0:18:16.840 shirt with a brochure handed out by students, saying, unlike 0:18:16.880 --> 0:18:19.840 those pieces of paper, a student couldn't throw away the shirt, 0:18:19.960 --> 0:18:22.760 and a T shirt that is worn all day is 0:18:22.840 --> 0:18:24.840 worn all day. You have to look at it, you 0:18:24.920 --> 0:18:27.960 have to read it. Did that come into the opinion 0:18:28.359 --> 0:18:29.080 that element? 0:18:29.520 --> 0:18:32.000 It definitely did. The Court took into account the form 0:18:32.240 --> 0:18:34.800 of speech right, the manner or the mode in which 0:18:34.840 --> 0:18:38.359 the speech is communicated. And as you say, as the 0:18:38.400 --> 0:18:41.800 court recognized the T shirt visible to any student throughout 0:18:41.800 --> 0:18:44.040 the day who happened to be sitting near or by 0:18:44.119 --> 0:18:47.359 this person or walked at them in the hallway. So 0:18:47.400 --> 0:18:50.639 it's sort of an ever present message. And if you 0:18:50.760 --> 0:18:53.720 view that message as the school officials did, and as 0:18:53.760 --> 0:18:56.560 the Court of Appeals agreed or at least referred to 0:18:56.600 --> 0:19:00.000 their reading of it, it detegrates people based on their identities, 0:19:00.200 --> 0:19:03.840 gender identity, and that the Court said, is linked to 0:19:04.119 --> 0:19:07.359 at least the potential for or a forecast of disruption 0:19:08.040 --> 0:19:11.520 in the school. You might have students wearing contrary or 0:19:11.560 --> 0:19:14.560 opposed T shirt. You might have arguments between the student 0:19:14.640 --> 0:19:17.439 wearing the shirt and others who disagree, and that's the 0:19:17.480 --> 0:19:21.760 basis on which the Court ultimately decides the case. So yes, 0:19:21.880 --> 0:19:25.920 the fact that if a T shirt makes a difference, this. 0:19:26.080 --> 0:19:31.080 Was a unanimous opinion. Explain more about how the judges 0:19:31.200 --> 0:19:32.840 came to the conclusion they did. 0:19:33.600 --> 0:19:36.639 Sure, So it's important, I think, to note that the 0:19:36.760 --> 0:19:39.920 first circuit here doesn't adopt some broad offensive to others 0:19:40.040 --> 0:19:43.760 limit on school speech, under which any statement that hurts 0:19:43.800 --> 0:19:46.800 the feelings of some students could be suppressed or punished. 0:19:47.680 --> 0:19:50.959 This isn't a decision that directly addresses bullying or harassment 0:19:51.040 --> 0:19:53.880 in the school context, both of which I think are 0:19:54.080 --> 0:19:57.560 widely viewed as subject to discipline, and rightly so. It 0:19:57.640 --> 0:20:00.840 doesn't rely on the principle of invading the rights of others. 0:20:00.920 --> 0:20:03.800 That's something the Supreme Court had said school officials could 0:20:03.840 --> 0:20:06.840 take into account. So what this boils down to essentially 0:20:07.320 --> 0:20:10.919 two things. One does the T shirt does the message 0:20:10.920 --> 0:20:14.560 on it demean the gender identities of other students? And two, 0:20:15.000 --> 0:20:18.760 for that reason, could the officials at the school foreseeably 0:20:19.359 --> 0:20:23.520 forecast a disruption of the educational environment? And with respect 0:20:23.520 --> 0:20:26.440 to both of those things. The court says yes, essentially 0:20:26.480 --> 0:20:31.760 deferring to the affidavits and the evidence that the school 0:20:31.840 --> 0:20:32.960 officials had provided. 0:20:34.320 --> 0:20:38.760 Chief Judge David Baron, who wrote the opinion, said, the 0:20:38.920 --> 0:20:41.439 question here is not whether the T shirt should have 0:20:41.480 --> 0:20:44.959 been barred. The question is who should decide whether to 0:20:45.000 --> 0:20:47.960 bar them, educators or federal judges. 0:20:49.400 --> 0:20:51.560 Yeah. I think what the court is saying is we 0:20:51.560 --> 0:20:54.119 don't feel comfortable sort of stepping into the shoes of 0:20:54.240 --> 0:20:59.240 school administrators, either in terms of interpreting what the message 0:20:59.280 --> 0:21:01.800 is on the T sh sure or maybe more importantly, 0:21:02.400 --> 0:21:06.360 forecasting whether it would cause disruption. The principle here would 0:21:06.400 --> 0:21:09.359 be who better knows the school environment and what sorts 0:21:09.359 --> 0:21:13.359 of conversation students have had around gender identity, what sorts 0:21:13.359 --> 0:21:16.040 of conflicts they have had in the past about that, 0:21:16.600 --> 0:21:20.280 What kind of activity might occur if we allowed students 0:21:20.280 --> 0:21:23.240 to wear this T shirt with this message to school. 0:21:23.760 --> 0:21:27.320 So they are differring. That's the sort of technical term, 0:21:27.359 --> 0:21:30.440 if you will, for what's going on here to school officials, 0:21:30.480 --> 0:21:33.240 and one could take issue with that, both with respect 0:21:33.320 --> 0:21:36.160 to what the T shirt says. Of course, the judges 0:21:36.240 --> 0:21:40.959 are empowered to view it and interpret it and with 0:21:41.000 --> 0:21:43.960 respect to what kind of different school officials should get. 0:21:44.520 --> 0:21:47.200 If you go too far with that difference, you essentially 0:21:47.440 --> 0:21:50.640 create a situation where school officials can sort of take 0:21:50.680 --> 0:21:54.120 the view that we can suppress speech that we don't 0:21:54.119 --> 0:21:57.160 agree with, right, even if there's no evidence of disruptions 0:21:57.160 --> 0:21:59.280 and the wearing of it, or it wouldn't be a 0:21:59.320 --> 0:22:02.359 reasonable for cast of disruption. If courts are just going 0:22:02.400 --> 0:22:07.440 to defer to educators on these matters, then students' free 0:22:07.480 --> 0:22:08.800 speech rights are going to suffer. 0:22:09.480 --> 0:22:11.760 Give us a little bit of the background of how 0:22:11.800 --> 0:22:15.880 the Supreme Court has treated these cases of free speech 0:22:16.040 --> 0:22:16.720 in schools. 0:22:17.640 --> 0:22:20.800 Well, the Court started in a case called Tinker in 0:22:20.880 --> 0:22:24.520 nineteen fifty nine with a very broad reputation of student 0:22:24.640 --> 0:22:27.639 free speech rights right only if the speech disrupts the 0:22:27.720 --> 0:22:32.040 educational environment or invade the rights of others can officials 0:22:32.680 --> 0:22:36.399 move to suppress it. But in every decision since, at 0:22:36.480 --> 0:22:39.480 least in most decisions sense, the Court has taken the 0:22:39.560 --> 0:22:43.919 view that school administrators have the power to limit or 0:22:43.920 --> 0:22:48.600 restrict speech if it's say, profane or inappropriate for certain 0:22:48.840 --> 0:22:54.360 younger audiences, or it relates to the curriculum of a school. 0:22:55.000 --> 0:22:59.600 So it's pretty consistently since Tinker been the view of 0:22:59.600 --> 0:23:03.080