1 00:00:00,080 --> 00:00:02,800 Speaker 1: Earlier this week, Twitter added a fact check label to 2 00:00:02,920 --> 00:00:07,160 Speaker 1: two Trump posts that made unsubstantiated claims about mail in voting. 3 00:00:07,440 --> 00:00:10,920 Speaker 1: Trump responded with an executive order on Thursday that aims 4 00:00:10,920 --> 00:00:14,040 Speaker 1: to curb some of the legal protections social media sites 5 00:00:14,080 --> 00:00:18,800 Speaker 1: have regarding content. My executive order calls for new regulations 6 00:00:18,880 --> 00:00:23,200 Speaker 1: under section two thirty of the Communications Decency Act to 7 00:00:23,320 --> 00:00:26,560 Speaker 1: make it that social media companies that engage in censoring 8 00:00:26,720 --> 00:00:29,800 Speaker 1: or any political conduct will not be able to keep 9 00:00:29,840 --> 00:00:33,720 Speaker 1: the liability shield undeterred. Twitter flagged that Trump tweet on 10 00:00:33,760 --> 00:00:38,040 Speaker 1: Friday for violating its rules against glorifying violence. My guest 11 00:00:38,120 --> 00:00:41,159 Speaker 1: is noted. First Amendment expert Eugene Fo, a professor at 12 00:00:41,280 --> 00:00:44,360 Speaker 1: u c l A Law School. Eugene explain the liability 13 00:00:44,440 --> 00:00:50,440 Speaker 1: protections that Twitter and other platforms get under section to thirty. Sure, so, 14 00:00:51,000 --> 00:00:54,360 Speaker 1: let's say that somebody publishes something in a newspaper that 15 00:00:54,520 --> 00:00:57,640 Speaker 1: liabels me. I can sue the newspaper. And that's true 16 00:00:57,760 --> 00:01:00,680 Speaker 1: even if this is a letter to the editor. Newspaper 17 00:01:00,760 --> 00:01:03,600 Speaker 1: is liable as a publisher for things that it prints. Now, 18 00:01:03,600 --> 00:01:05,560 Speaker 1: what if someone liabels me in a book that's sold 19 00:01:05,560 --> 00:01:09,560 Speaker 1: through a bookstore. Well, in that kind of situation. I 20 00:01:09,600 --> 00:01:13,080 Speaker 1: could sue the bookstore, but it has certain protections. That's 21 00:01:13,080 --> 00:01:15,600 Speaker 1: treated as a distributor, So I basically have to put 22 00:01:15,600 --> 00:01:17,840 Speaker 1: it on notice first that the book is liablous. I 23 00:01:17,840 --> 00:01:20,360 Speaker 1: have to tell it it's liabilous and explain why that's so. 24 00:01:20,840 --> 00:01:22,840 Speaker 1: And at that point, if the book store keeps it up, 25 00:01:22,880 --> 00:01:25,000 Speaker 1: I can see. And then there's a third question. What 26 00:01:25,120 --> 00:01:28,000 Speaker 1: if somebody liabels me over the telephone even let's say 27 00:01:28,160 --> 00:01:31,280 Speaker 1: back when they're answering machine messages. In an outgoing answering 28 00:01:31,319 --> 00:01:33,679 Speaker 1: machine message, if people call this number they see something 29 00:01:33,720 --> 00:01:36,479 Speaker 1: liabulous about me, you might call that a platform rather 30 00:01:36,520 --> 00:01:40,480 Speaker 1: than a publisher distributor. The telephone company is completely immune 31 00:01:40,480 --> 00:01:44,080 Speaker 1: from liability. Likewise, let's say somebody liabels me and email, 32 00:01:44,440 --> 00:01:48,400 Speaker 1: and then I call up Google and say, Gmail messages 33 00:01:48,440 --> 00:01:50,760 Speaker 1: are being used to liable me, Please cancel that account. 34 00:01:51,040 --> 00:01:53,960 Speaker 1: Google is also immune from liability and would be even 35 00:01:53,960 --> 00:01:58,640 Speaker 1: in the absence of any federal statute. So in Congress 36 00:01:58,680 --> 00:02:02,480 Speaker 1: said that online line service and content providers should be 37 00:02:02,520 --> 00:02:06,120 Speaker 1: treated like platforms, not like publishers like newspapers, not like 38 00:02:06,160 --> 00:02:09,840 Speaker 1: distributors like bookstores, but kind of like the telephone company 39 00:02:10,000 --> 00:02:13,520 Speaker 1: or an email system. They should be completely immune from 40 00:02:13,520 --> 00:02:17,000 Speaker 1: liability from things that other people post. That's why, for example, 41 00:02:17,040 --> 00:02:19,560 Speaker 1: I can have comments on my blog without fearing that 42 00:02:19,600 --> 00:02:22,679 Speaker 1: I could be sued anytime somebody posts something supposedly liableous 43 00:02:22,680 --> 00:02:25,840 Speaker 1: in a comment. And that is true even if this 44 00:02:26,040 --> 00:02:29,960 Speaker 1: online service or content provider does some screening, either some 45 00:02:30,000 --> 00:02:32,359 Speaker 1: screening or some after the fact removal. So I'm going 46 00:02:32,400 --> 00:02:35,040 Speaker 1: to be immune from liability for comments that people post, 47 00:02:35,080 --> 00:02:37,320 Speaker 1: even if I occasionally delete some comments that I think 48 00:02:37,360 --> 00:02:40,679 Speaker 1: are highly vulgar or personally insulting, or for that matter, 49 00:02:40,720 --> 00:02:42,799 Speaker 1: I think they might be liable. So then it's Twitter 50 00:02:42,840 --> 00:02:45,280 Speaker 1: within its rights to fact check a Trump post with 51 00:02:45,360 --> 00:02:47,880 Speaker 1: a link, or to even delete it. So you ask 52 00:02:47,919 --> 00:02:50,800 Speaker 1: two questions. One it has to do with adding links 53 00:02:50,800 --> 00:02:54,000 Speaker 1: for fact checking, and that is pure exercise the First 54 00:02:54,000 --> 00:02:58,760 Speaker 1: Amendment right. It's Twitter speaking, not Twitter blocking speech. It's 55 00:02:58,760 --> 00:03:02,200 Speaker 1: Twitter and responding to a speech with speech of itsself. Indubitably, 56 00:03:02,400 --> 00:03:04,000 Speaker 1: Twitter has a right to do that. Won't have a 57 00:03:04,080 --> 00:03:06,400 Speaker 1: right to do that even without federal Section to thirty. 58 00:03:06,600 --> 00:03:09,760 Speaker 1: Second question is what if Twitter deletes some post that too, 59 00:03:09,960 --> 00:03:12,480 Speaker 1: is within its rights under Section to thirty. It might 60 00:03:12,560 --> 00:03:14,560 Speaker 1: also be part of its First Amendment rights. You could 61 00:03:14,639 --> 00:03:16,440 Speaker 1: argue that just like a newspaper has the right to 62 00:03:16,480 --> 00:03:19,080 Speaker 1: refuse to publish something, Twitter should have the right to 63 00:03:19,120 --> 00:03:21,000 Speaker 1: delete things as well. That's a little bit of a 64 00:03:21,040 --> 00:03:24,280 Speaker 1: closer call, but certainly under Section to thirty, Twitter is 65 00:03:24,320 --> 00:03:27,160 Speaker 1: indeed allowed to do that. And what's more, it sounds 66 00:03:27,200 --> 00:03:30,639 Speaker 1: like there's some law out there that says service providers 67 00:03:30,720 --> 00:03:33,640 Speaker 1: must be even handed in their actions with regard to 68 00:03:33,720 --> 00:03:37,040 Speaker 1: post or cannot delete any post. Even in the absence 69 00:03:37,040 --> 00:03:39,680 Speaker 1: of Section to thirty, there wouldn't be any statute or 70 00:03:39,680 --> 00:03:43,560 Speaker 1: any common law principle that requires Twitter to host everything, 71 00:03:43,720 --> 00:03:45,800 Speaker 1: just like there's no rule that says a bookstore has 72 00:03:45,840 --> 00:03:49,280 Speaker 1: to distribute every book that people ask to distribute. But 73 00:03:49,400 --> 00:03:53,680 Speaker 1: in any event, when it comes to Twitter's actual responses 74 00:03:53,720 --> 00:03:56,600 Speaker 1: to post, that's something that's fully protected by the First 75 00:03:56,920 --> 00:03:59,400 Speaker 1: There's been criticism of Twitter for a fact checking the 76 00:03:59,480 --> 00:04:03,920 Speaker 1: present on election matters, but not taking down recent tweets 77 00:04:03,960 --> 00:04:08,840 Speaker 1: by the President that baselessly accused MSNBC host Joe Scarborough. 78 00:04:09,200 --> 00:04:12,520 Speaker 1: Are they using different standards? Well, surely there ought to 79 00:04:12,560 --> 00:04:15,320 Speaker 1: be a different standard for deciding when to take something down, 80 00:04:15,680 --> 00:04:18,400 Speaker 1: as opposed to deciding when to simply respond to it. 81 00:04:18,720 --> 00:04:21,200 Speaker 1: So if they say, you know, we're going to respond 82 00:04:21,200 --> 00:04:23,920 Speaker 1: to something, that doesn't block any speech to the public. 83 00:04:23,960 --> 00:04:27,440 Speaker 1: It doesn't limit speed, limit the marketplace of ideas. It 84 00:04:27,440 --> 00:04:30,880 Speaker 1: adds to the marketplace of ideas. Removing post is something 85 00:04:30,920 --> 00:04:33,800 Speaker 1: that that's a more serious matter. To be sure, Twitter 86 00:04:33,880 --> 00:04:38,240 Speaker 1: does remove some posts, but I think as a general matter, 87 00:04:39,200 --> 00:04:42,279 Speaker 1: my sense is that Twitter and other platforms are quite 88 00:04:42,320 --> 00:04:46,960 Speaker 1: reluctant to remove posts simply based on allegations, essentially of defamation. 89 00:04:47,720 --> 00:04:50,599 Speaker 1: And part of the reason for that is that it's 90 00:04:50,600 --> 00:04:54,120 Speaker 1: impossible to tell from the face of a post whether 91 00:04:54,200 --> 00:04:57,599 Speaker 1: whether it's defamatory or not. You'd have to investigate the fact, 92 00:04:58,680 --> 00:05:01,599 Speaker 1: and often the fact are pretty hard to figure out. 93 00:05:02,400 --> 00:05:04,480 Speaker 1: They require a court to do that, the court that 94 00:05:04,520 --> 00:05:07,159 Speaker 1: has subpoena power of courts that can bear witnesses, and 95 00:05:07,200 --> 00:05:11,400 Speaker 1: even even courts aren't really great at resolving Bible cases. Um. 96 00:05:11,880 --> 00:05:14,320 Speaker 1: What's more, if Twitter were to say we're going to 97 00:05:14,360 --> 00:05:16,680 Speaker 1: delete this post because we think it says false things 98 00:05:16,720 --> 00:05:21,040 Speaker 1: about Joe Scarborough, then it will be inundated with millions 99 00:05:21,040 --> 00:05:23,960 Speaker 1: of requests from people who say, well, um, these tweets 100 00:05:23,960 --> 00:05:26,520 Speaker 1: are saying false things about us, you should delete them too. 101 00:05:26,800 --> 00:05:28,760 Speaker 1: I don't think Twitter wants to be in a position 102 00:05:29,000 --> 00:05:32,960 Speaker 1: where it's making decisions about who is right and who 103 00:05:33,040 --> 00:05:36,200 Speaker 1: is wrong in some controversy about who did what to whom, 104 00:05:36,320 --> 00:05:40,679 Speaker 1: um uh post about something like coronavirus and such. There 105 00:05:41,120 --> 00:05:44,480 Speaker 1: there's still some a lot of complexity about that, and 106 00:05:44,520 --> 00:05:47,320 Speaker 1: I think there's a lot of danger in service providers 107 00:05:47,320 --> 00:05:50,559 Speaker 1: saying here's the truth about coronavirus, and that's false, because 108 00:05:50,600 --> 00:05:52,520 Speaker 1: that one of these things. Often people don't really know 109 00:05:52,560 --> 00:05:54,640 Speaker 1: what the truth is. But at least that's a fairly 110 00:05:54,760 --> 00:05:58,279 Speaker 1: limited universe of of um of matters that they have 111 00:05:58,440 --> 00:06:00,680 Speaker 1: to they have to resolve. So they could say, here 112 00:06:00,760 --> 00:06:03,479 Speaker 1: is a list of particular hoaxes about or thinks we 113 00:06:03,600 --> 00:06:07,240 Speaker 1: think our hoaxes about coronavirus, or just false with about coronavirus, 114 00:06:07,360 --> 00:06:10,000 Speaker 1: We're going to delete them again. I'm not sure it's 115 00:06:10,040 --> 00:06:12,000 Speaker 1: a good idea for them to do that, but it's 116 00:06:12,040 --> 00:06:15,039 Speaker 1: relatively manageable. Whereas if they get in the business of 117 00:06:15,040 --> 00:06:17,880 Speaker 1: trying to delete posts simply because someone says they're liabeleist, 118 00:06:18,279 --> 00:06:20,359 Speaker 1: then there is no list or here all the false 119 00:06:20,360 --> 00:06:23,400 Speaker 1: things that are said about anybody that have to investigating 120 00:06:23,440 --> 00:06:26,200 Speaker 1: in each one of them. Let's say Joe Scarborough was 121 00:06:26,200 --> 00:06:28,560 Speaker 1: was not an MSNBC host. Let's say you, as an 122 00:06:28,640 --> 00:06:33,240 Speaker 1: ordinary citizen, is there any way for him to protect 123 00:06:33,320 --> 00:06:37,440 Speaker 1: against a post like that a private citizen well as 124 00:06:37,440 --> 00:06:40,039 Speaker 1: a general matter, the answer is liabel law, and you 125 00:06:40,040 --> 00:06:43,400 Speaker 1: could sue the person who's doing the post. Now it's 126 00:06:43,400 --> 00:06:45,240 Speaker 1: a little bit more complicated than the person who's doing 127 00:06:45,279 --> 00:06:47,400 Speaker 1: the posting as a high government official or the president, 128 00:06:47,640 --> 00:06:51,520 Speaker 1: in part because there's various immunities that libel law provides 129 00:06:51,640 --> 00:06:54,800 Speaker 1: for uh speech by government officials within the scope of 130 00:06:54,839 --> 00:06:57,599 Speaker 1: their duties. So it's an interesting question how that would apply. 131 00:06:57,640 --> 00:07:01,280 Speaker 1: But in a typical situation, if you think that I've 132 00:07:01,320 --> 00:07:05,160 Speaker 1: liabeled you, you can sue me. Of course, it's an 133 00:07:05,320 --> 00:07:08,400 Speaker 1: expensive and difficult for position, but that's what our legal 134 00:07:08,400 --> 00:07:11,120 Speaker 1: system provides for. You can sue me and then you 135 00:07:11,160 --> 00:07:13,640 Speaker 1: can get maybe damages against me. You might be able 136 00:07:13,720 --> 00:07:16,120 Speaker 1: to in most states get an order ordering me to 137 00:07:16,200 --> 00:07:21,239 Speaker 1: take down the post, and many service providers, I believe, 138 00:07:21,280 --> 00:07:24,000 Speaker 1: including Twitter, have a policy that if they actually get 139 00:07:24,000 --> 00:07:26,560 Speaker 1: a court order, not a court ordering them to take 140 00:07:26,600 --> 00:07:28,840 Speaker 1: it down, because they don't have an obligation take it out, 141 00:07:28,960 --> 00:07:32,280 Speaker 1: but a court order ordering somebody to take something down 142 00:07:32,440 --> 00:07:35,200 Speaker 1: is liabelous, then they'll assist in that by deleting it 143 00:07:35,280 --> 00:07:38,080 Speaker 1: themselves if the if the author doesn't delete, because then 144 00:07:38,080 --> 00:07:41,640 Speaker 1: their theory is look, a court has already figured out 145 00:07:41,640 --> 00:07:43,840 Speaker 1: that this is libelous. There are problems with that. I've 146 00:07:43,880 --> 00:07:45,880 Speaker 1: been doing a lot of research on the subject, and 147 00:07:46,080 --> 00:07:48,480 Speaker 1: a lot of the orders that are submitted to various 148 00:07:48,520 --> 00:07:53,600 Speaker 1: service providers actually fraudulentce some are forged. Um. There's always 149 00:07:53,680 --> 00:07:57,880 Speaker 1: difficulties when you when third parties like Twitter decided to 150 00:07:57,920 --> 00:08:00,480 Speaker 1: go along with court orders to which they weren't parties. 151 00:08:00,960 --> 00:08:03,000 Speaker 1: But in any event, that's the kind of system that 152 00:08:03,040 --> 00:08:05,800 Speaker 1: we have right now. If you if you think that 153 00:08:05,840 --> 00:08:08,000 Speaker 1: I liabled you in a tweet, and you just email 154 00:08:08,040 --> 00:08:10,800 Speaker 1: Twitter and say walk has been liabeling me, I don't 155 00:08:10,800 --> 00:08:14,360 Speaker 1: think the Twitter would say, okay, fine, we'll investigate who's 156 00:08:14,360 --> 00:08:17,000 Speaker 1: telling the truth here. The Executive Order seems to be 157 00:08:17,040 --> 00:08:20,960 Speaker 1: pushing the FCC to issue rules under Section to thirty. 158 00:08:21,520 --> 00:08:24,520 Speaker 1: One of the things that it contemplates, at least the 159 00:08:24,600 --> 00:08:28,880 Speaker 1: draft that I have seen, is essentially having the Secretary 160 00:08:28,920 --> 00:08:32,199 Speaker 1: of Commerce file a petition for rulemaking with the FCC 161 00:08:32,800 --> 00:08:37,160 Speaker 1: asking that they interpret Section to thirty in a way 162 00:08:37,320 --> 00:08:41,840 Speaker 1: that limits service provider's ability to block certain content. It's 163 00:08:41,840 --> 00:08:45,280 Speaker 1: not clear that the FEC has the regulatory authority to 164 00:08:45,320 --> 00:08:47,920 Speaker 1: try to interpret Section to thirty that way, And in 165 00:08:47,960 --> 00:08:50,400 Speaker 1: any event, it seems to me that the section is 166 00:08:50,440 --> 00:08:55,360 Speaker 1: pretty clear in allowing service providers to block whatever content 167 00:08:55,400 --> 00:08:57,920 Speaker 1: they find objectionable. So I don't think that that's going 168 00:08:57,960 --> 00:09:00,280 Speaker 1: to go anywhere. But at this point of course, the 169 00:09:00,400 --> 00:09:03,080 Speaker 1: call is to ask the FTC to do something. Certainly, 170 00:09:03,120 --> 00:09:05,640 Speaker 1: if the President is entitled to ask the FEC to 171 00:09:05,720 --> 00:09:08,120 Speaker 1: do something, the question is what can the FEC do 172 00:09:08,240 --> 00:09:10,000 Speaker 1: and what will it do in the midst of this. 173 00:09:10,160 --> 00:09:14,160 Speaker 1: On Wednesday, the DC Circuit Court of Appeals rejected claims 174 00:09:14,200 --> 00:09:19,199 Speaker 1: that Twitter, Facebook, Apple, and Google conspired to suppress conservative 175 00:09:19,280 --> 00:09:22,520 Speaker 1: views online. Tell us about the decision. Even in the 176 00:09:22,559 --> 00:09:26,199 Speaker 1: absence of Section two thirty, there's no legal rule that 177 00:09:26,280 --> 00:09:29,720 Speaker 1: requires service providers to be fair in what they allow 178 00:09:29,720 --> 00:09:31,800 Speaker 1: and what they don't allow, just like there's no legal 179 00:09:31,880 --> 00:09:34,720 Speaker 1: rule that requires a bookstore to be even handed in 180 00:09:34,760 --> 00:09:37,200 Speaker 1: the books that it decides to sell or not. So 181 00:09:37,400 --> 00:09:40,040 Speaker 1: that was the problem that the plaintiffs their face. They 182 00:09:40,080 --> 00:09:44,080 Speaker 1: claimed that social media companies generally were discriminating against them 183 00:09:44,120 --> 00:09:47,240 Speaker 1: because of their conservative political views. And but what's illegal 184 00:09:47,240 --> 00:09:49,600 Speaker 1: about that. Well, first, they said, this violates the First Amendment. 185 00:09:49,960 --> 00:09:52,640 Speaker 1: Knows that the court first amm and binds the government. 186 00:09:52,640 --> 00:09:56,360 Speaker 1: It doesn't bind private social media companies, however important and 187 00:09:56,440 --> 00:09:59,280 Speaker 1: powerful they might be. First Amendment says Congress shall make 188 00:09:59,320 --> 00:10:02,560 Speaker 1: no law fourteens emlement applies that the States, and by 189 00:10:02,559 --> 00:10:05,520 Speaker 1: extension to local governments. Nothing applies that nothing in the 190 00:10:05,520 --> 00:10:09,040 Speaker 1: Constitution applies that the private entity. Second, they said, well, 191 00:10:09,040 --> 00:10:11,960 Speaker 1: there is a violation of antitrust law because there's this conspiracy, 192 00:10:12,080 --> 00:10:14,560 Speaker 1: and the courts that there have no evidence of a conspiracy. 193 00:10:14,800 --> 00:10:18,160 Speaker 1: They have given no evidence of anti competitive agreements. It's 194 00:10:18,240 --> 00:10:21,360 Speaker 1: true that service providers do try to delete certain kinds 195 00:10:21,400 --> 00:10:25,120 Speaker 1: of material that they find offensive, but that doesn't show 196 00:10:25,160 --> 00:10:28,240 Speaker 1: that this is a anti trust violation. Just to give 197 00:10:28,280 --> 00:10:30,560 Speaker 1: an analogy, a lot of newspapers have a policy of 198 00:10:30,679 --> 00:10:35,040 Speaker 1: not publishing vulgarity. But that doesn't mean because it's that 199 00:10:35,120 --> 00:10:37,520 Speaker 1: it's a conspiracy among them. Even though a lot happened, 200 00:10:37,520 --> 00:10:40,320 Speaker 1: it's just part of a shared culture. Then the third 201 00:10:40,559 --> 00:10:45,920 Speaker 1: argument was d C law bands discrimination in places of 202 00:10:46,000 --> 00:10:51,480 Speaker 1: public accommodation based on political affiliation. And they said, ah, 203 00:10:52,160 --> 00:10:56,040 Speaker 1: these service providers are places of public accommodation. They're discriminating 204 00:10:56,080 --> 00:10:59,360 Speaker 1: inst us because of our conservative But the d C 205 00:10:59,480 --> 00:11:01,600 Speaker 1: circuits said, well, if you look at what DC courts 206 00:11:01,600 --> 00:11:03,800 Speaker 1: have said about the statute, they said, it applies to 207 00:11:03,840 --> 00:11:07,840 Speaker 1: bricks and mortar businesses two places, to physical places, not 208 00:11:08,040 --> 00:11:13,240 Speaker 1: just virtual entities like perhaps like uh, like organizations or 209 00:11:13,920 --> 00:11:16,920 Speaker 1: an online it. And in this the DC circuits that 210 00:11:17,000 --> 00:11:19,719 Speaker 1: we're supposed to follow d C law, and that's what 211 00:11:19,920 --> 00:11:24,040 Speaker 1: d C courts, including DC's High courts, have set um. Now, 212 00:11:24,520 --> 00:11:28,520 Speaker 1: m uh, there's another reason, by the way, that the 213 00:11:28,559 --> 00:11:32,760 Speaker 1: plaintiffs uh didn't have a case under this. The the 214 00:11:32,760 --> 00:11:35,400 Speaker 1: the um under the statute of the d C Circuit 215 00:11:35,400 --> 00:11:38,120 Speaker 1: didn't talk about it, but it could have equally easily 216 00:11:38,120 --> 00:11:41,320 Speaker 1: decided this that this basis though, d C is one 217 00:11:41,360 --> 00:11:45,040 Speaker 1: of the few places that actually banns public accommodation discrimination 218 00:11:45,080 --> 00:11:49,160 Speaker 1: based in political affiliation. The statute specifically defines political affiliation 219 00:11:49,240 --> 00:11:53,360 Speaker 1: is party affiliation. So discriminating even in our bricks and 220 00:11:53,360 --> 00:11:58,319 Speaker 1: mortar place based on a person's political beliefs, generally ideological views, 221 00:11:58,480 --> 00:12:01,400 Speaker 1: is not prohibited by the law, it's only discrimination based 222 00:12:01,520 --> 00:12:05,280 Speaker 1: on UH party affiliation, So for example, excluding someone because 223 00:12:05,320 --> 00:12:08,080 Speaker 1: they're a Republican or Democrat, or a socialist or libertarians. 224 00:12:08,679 --> 00:12:11,400 Speaker 1: Um So, in any event, for all these reasons, the 225 00:12:11,440 --> 00:12:13,400 Speaker 1: Court didn't even have to get the section to thirty, 226 00:12:13,400 --> 00:12:15,120 Speaker 1: which I think would in any event have provided an 227 00:12:15,120 --> 00:12:18,080 Speaker 1: immunity for social media platforms, because the court says, look, 228 00:12:18,480 --> 00:12:21,880 Speaker 1: it's just not illegal in the first instance. There's just 229 00:12:22,000 --> 00:12:26,520 Speaker 1: no legal rule that that requires social media platforms to 230 00:12:26,559 --> 00:12:30,439 Speaker 1: be even handed or nondiscriminatory based on politics. This was 231 00:12:30,480 --> 00:12:34,560 Speaker 1: an ananymous decision. The lawyer for Freedom Watch says that 232 00:12:34,600 --> 00:12:36,959 Speaker 1: he's going to appeal this to ask for an on 233 00:12:37,120 --> 00:12:40,280 Speaker 1: bank hearing or to the Supreme Court. Is this the 234 00:12:40,400 --> 00:12:44,400 Speaker 1: kind of case that might appeal to an on bank hearing? 235 00:12:44,440 --> 00:12:49,360 Speaker 1: Is there enough controversy in it? I think it's extremely 236 00:12:49,440 --> 00:12:51,839 Speaker 1: unlikely that the DC Circuit will regard that. In bank 237 00:12:52,320 --> 00:12:55,400 Speaker 1: uh and bank recarings are very rare, in part because 238 00:12:56,520 --> 00:12:59,120 Speaker 1: the judges don't want to spend extra time of the 239 00:12:59,160 --> 00:13:02,040 Speaker 1: whole court something that as three judge panel had already 240 00:13:02,080 --> 00:13:06,599 Speaker 1: resolved um Uh. They're particularly rare when the panel is 241 00:13:06,720 --> 00:13:10,680 Speaker 1: unanimous and they hear the panel of some liberal members 242 00:13:11,400 --> 00:13:13,520 Speaker 1: at least I think a liberal member a couple of 243 00:13:13,520 --> 00:13:17,640 Speaker 1: conservative members. Um So, I think it's unlikely that some 244 00:13:18,120 --> 00:13:20,120 Speaker 1: judges off the panel will say, oh, no, no, no, 245 00:13:20,160 --> 00:13:21,880 Speaker 1: this is so clearly wrong, we have to take it 246 00:13:21,920 --> 00:13:26,880 Speaker 1: in Bank. There's no real disagreement within DC Circuit's decisions 247 00:13:26,960 --> 00:13:29,240 Speaker 1: or between the d C Circuit and other circuit courts 248 00:13:29,280 --> 00:13:32,600 Speaker 1: on this point. In fact, similar claims had been brought before, 249 00:13:32,640 --> 00:13:35,200 Speaker 1: and it has been pretty much unanimously rejected by all 250 00:13:35,240 --> 00:13:38,480 Speaker 1: the courts that have considered them. Uh So, I don't 251 00:13:38,480 --> 00:13:40,320 Speaker 1: see this going to the d C Circuit and Bank. 252 00:13:40,400 --> 00:13:42,200 Speaker 1: I don't see this going to the US Supreme Court. 253 00:13:42,240 --> 00:13:45,000 Speaker 1: I think the panel decision was clearly correct, and I 254 00:13:45,040 --> 00:13:47,640 Speaker 1: don't think other courts are going to be. For other courts, 255 00:13:47,679 --> 00:13:50,400 Speaker 1: other judges are going to be inclined to take to 256 00:13:50,480 --> 00:13:53,560 Speaker 1: take time to try to reconsider the matter. There's a 257 00:13:53,559 --> 00:13:57,040 Speaker 1: whole separate question of what the law ought to be 258 00:13:57,840 --> 00:14:01,040 Speaker 1: uh and in particular whether Congress should enact, say, some 259 00:14:01,160 --> 00:14:05,600 Speaker 1: statutes that require social media platforms to be kind of 260 00:14:05,679 --> 00:14:09,800 Speaker 1: like the phone company as common carriers that um are 261 00:14:09,920 --> 00:14:14,120 Speaker 1: even handed in the sense that that they allow old speech, 262 00:14:14,240 --> 00:14:17,520 Speaker 1: or at least perhaps don't impose viewpoint based rules. It's 263 00:14:17,520 --> 00:14:20,280 Speaker 1: an interesting question whether Congress ought to do it. And 264 00:14:20,280 --> 00:14:22,520 Speaker 1: then there's an interesting question, so whether Congress could do 265 00:14:22,560 --> 00:14:25,440 Speaker 1: it consistently with the first amendments. Should the platforms have 266 00:14:25,520 --> 00:14:31,400 Speaker 1: the same first amendments too, Let's say, to um decide 267 00:14:31,440 --> 00:14:35,240 Speaker 1: to run or not run things based on ideology, or 268 00:14:35,280 --> 00:14:38,440 Speaker 1: should they be treated like let's say, cable television systems, 269 00:14:38,440 --> 00:14:41,000 Speaker 1: where the Supreme Court has said it's okay to impose 270 00:14:41,320 --> 00:14:46,440 Speaker 1: content neutral requirements of kind of common carriage, not exactly 271 00:14:46,560 --> 00:14:52,520 Speaker 1: on on cable television systems cable operators. It's an interesting question, 272 00:14:52,640 --> 00:14:57,440 Speaker 1: but again that would require statutory change. The current legal 273 00:14:57,520 --> 00:15:02,120 Speaker 1: rules are pretty clear that social media platforms do, indeed 274 00:15:02,200 --> 00:15:06,200 Speaker 1: are indeed entitled to decide, like most businesses, what kind 275 00:15:06,240 --> 00:15:09,520 Speaker 1: of speech to tolerate on their premaces and what kind 276 00:15:09,520 --> 00:15:13,360 Speaker 1: of Thanks Eugene, that's Eugene V. Of u c l 277 00:15:13,400 --> 00:15:19,760 Speaker 1: A Law School. You're listening to Bloomberg Law with June 278 00:15:19,800 --> 00:15:24,440 Speaker 1: Grasso from Bloomberg Radio. Welcome to Bloomberg Law. I'm June Grosso. 279 00:15:24,760 --> 00:15:28,320 Speaker 1: Ahead in this hour, with about five months until election day, 280 00:15:28,560 --> 00:15:31,960 Speaker 1: is voting by mail hanging by a threat in some states, 281 00:15:32,640 --> 00:15:37,240 Speaker 1: and Trump's Twitter war on Twitter. Record numbers of Americans 282 00:15:37,240 --> 00:15:40,000 Speaker 1: are expected to vote by mail in the November elections 283 00:15:40,040 --> 00:15:43,200 Speaker 1: in the wake of the coronavirus pandemic. Time is short. 284 00:15:43,280 --> 00:15:46,640 Speaker 1: Election officials have just weeks left to ensure that their 285 00:15:46,680 --> 00:15:49,120 Speaker 1: states are set up to handle a surge of mail 286 00:15:49,160 --> 00:15:51,680 Speaker 1: in votes, but their funding is caught up in a 287 00:15:51,720 --> 00:15:55,480 Speaker 1: political battle. President Trump says that mail in voting leads 288 00:15:55,520 --> 00:15:59,240 Speaker 1: to fraud. They'll be grabbing them from mailboxes. They'll even 289 00:15:59,280 --> 00:16:01,960 Speaker 1: be printing them. They'll use the same paper, the same machines, 290 00:16:02,000 --> 00:16:05,080 Speaker 1: and they'll be printing ballots illegally, and they'll be sending 291 00:16:05,120 --> 00:16:07,600 Speaker 1: them in by the hundreds of thousands, and nobody's going 292 00:16:07,640 --> 00:16:10,320 Speaker 1: to know the difference. We can't do that well. House 293 00:16:10,320 --> 00:16:13,560 Speaker 1: Speaker Nancy Pelosi says mail in voting is essential to 294 00:16:13,600 --> 00:16:16,720 Speaker 1: protect the nation's health, and the federal government should provide 295 00:16:16,720 --> 00:16:20,440 Speaker 1: funding for it. That would be three point six billion dollars, 296 00:16:20,760 --> 00:16:23,920 Speaker 1: a small price to pay for our democracy and the 297 00:16:23,960 --> 00:16:27,400 Speaker 1: good health of Americans going to the polls. Joining me 298 00:16:27,400 --> 00:16:31,280 Speaker 1: as election law expert Richard Brafald, professor at Columbia Law School, 299 00:16:31,560 --> 00:16:34,840 Speaker 1: so which it's about five months until election day. What 300 00:16:34,960 --> 00:16:38,280 Speaker 1: would state or local officials have to do now to 301 00:16:38,360 --> 00:16:41,840 Speaker 1: allow voting by mail in November. Well, there's a mixture 302 00:16:41,960 --> 00:16:44,760 Speaker 1: of legal and practical things that they have to do. 303 00:16:44,960 --> 00:16:47,440 Speaker 1: The legal issues remain in those states that still require 304 00:16:47,560 --> 00:16:50,920 Speaker 1: some kind of excuse for voting, such as a disability 305 00:16:50,960 --> 00:16:53,920 Speaker 1: or an illness, are being away. Most states no longer 306 00:16:53,920 --> 00:16:56,440 Speaker 1: require that. In a number of states were forced us 307 00:16:56,480 --> 00:16:59,200 Speaker 1: to spend that by the courts during the primary season 308 00:16:59,240 --> 00:17:01,400 Speaker 1: this year. But I think there are still a number 309 00:17:01,400 --> 00:17:03,720 Speaker 1: of states where the law on the books, at least 310 00:17:03,720 --> 00:17:06,800 Speaker 1: for now, says you need to have an actual illness 311 00:17:06,920 --> 00:17:09,840 Speaker 1: or disability rather than just the presence of the COVID 312 00:17:09,880 --> 00:17:12,359 Speaker 1: pandemic itself. So that's kind of one set of issues 313 00:17:12,480 --> 00:17:16,560 Speaker 1: is the legal authority to allow basically nearly old people 314 00:17:16,600 --> 00:17:19,479 Speaker 1: to vote by mail. In the other states, and this 315 00:17:19,520 --> 00:17:21,840 Speaker 1: is most of the states now it is legal for 316 00:17:21,960 --> 00:17:24,520 Speaker 1: people to vote by mail without having to have an excuse. 317 00:17:24,640 --> 00:17:28,400 Speaker 1: The issues are really practical getting the ballots designed, because 318 00:17:28,400 --> 00:17:30,359 Speaker 1: the mail in ballot will look different from the value 319 00:17:30,359 --> 00:17:33,560 Speaker 1: of the anabilting machine, getting them printed, getting the envelopes, 320 00:17:33,640 --> 00:17:36,080 Speaker 1: getting them stuck, getting the machines that you need to 321 00:17:36,160 --> 00:17:39,000 Speaker 1: count now in ballots which are different from the machines 322 00:17:39,040 --> 00:17:41,560 Speaker 1: that are normally used to count ballots that are cast 323 00:17:41,600 --> 00:17:44,000 Speaker 1: in a polling place. Some states, and maybe I've even 324 00:17:44,080 --> 00:17:46,359 Speaker 1: jumped over a step on some states, you may be 325 00:17:46,440 --> 00:17:48,440 Speaker 1: inteligible to vote by mail, but you may have to 326 00:17:48,440 --> 00:17:52,120 Speaker 1: skill out an application. So the process for getting those 327 00:17:52,119 --> 00:17:55,239 Speaker 1: applications to people and getting those applications back to the 328 00:17:55,320 --> 00:17:58,640 Speaker 1: county clerk or whoever is in charge of a voting locally, 329 00:17:58,880 --> 00:18:01,159 Speaker 1: so vote by mail is someone more complicated. There are 330 00:18:01,200 --> 00:18:04,320 Speaker 1: more steps to it than traditional polling place voting, and 331 00:18:04,440 --> 00:18:06,600 Speaker 1: just the mechanics of it are going to be different. 332 00:18:06,760 --> 00:18:09,040 Speaker 1: A number of states have done it very successfully, but 333 00:18:09,160 --> 00:18:12,320 Speaker 1: they transition to it over several election cycles. And basically 334 00:18:12,400 --> 00:18:13,679 Speaker 1: what's going to happen is there are a lot of 335 00:18:13,720 --> 00:18:17,000 Speaker 1: states where that transition is gonna have to be very fast. 336 00:18:17,600 --> 00:18:20,200 Speaker 1: What about the money it takes to do all this? 337 00:18:20,920 --> 00:18:25,200 Speaker 1: It all takes money, new machinery, new supplies, new printing. 338 00:18:25,520 --> 00:18:27,560 Speaker 1: This is all going to take money. Is any of 339 00:18:27,560 --> 00:18:30,719 Speaker 1: that money coming from the federal government. The federal government, 340 00:18:30,800 --> 00:18:34,960 Speaker 1: in one of the coronavirus response laws, put in some money, 341 00:18:35,320 --> 00:18:38,439 Speaker 1: but most people in the election administration. Field think that 342 00:18:38,560 --> 00:18:41,520 Speaker 1: the money that they provided with maybe assist to a 343 00:18:41,600 --> 00:18:44,199 Speaker 1: fourth of what it's going to cost, that it was 344 00:18:44,240 --> 00:18:47,959 Speaker 1: just really irrelatively modest sum. I mean, we're talking probably 345 00:18:48,000 --> 00:18:50,240 Speaker 1: in the take the low billions of the one or 346 00:18:50,240 --> 00:18:52,960 Speaker 1: two billion dollars nationwide, and I think that the money 347 00:18:53,119 --> 00:18:55,479 Speaker 1: in the federal k techage was in the low hundreds 348 00:18:55,480 --> 00:18:57,919 Speaker 1: of millions. So there's a gap there. And this is 349 00:18:57,960 --> 00:19:02,000 Speaker 1: a time when both states and governments are financially strapped. 350 00:19:02,160 --> 00:19:04,600 Speaker 1: You could say they're always financially strapped, it's much worse now, 351 00:19:04,960 --> 00:19:07,960 Speaker 1: partly due to the increased expenses states and local governments 352 00:19:07,960 --> 00:19:10,639 Speaker 1: have had to incur in responding to COVID nineteen, so 353 00:19:10,760 --> 00:19:13,399 Speaker 1: maybe even more so due to the revenue losses. There's 354 00:19:13,440 --> 00:19:17,400 Speaker 1: been huge drops in sales tax payments and stay income 355 00:19:17,440 --> 00:19:20,160 Speaker 1: tax payments, and just the financial hit all the states 356 00:19:20,160 --> 00:19:22,399 Speaker 1: and locals have been substantial. And at the same time 357 00:19:22,440 --> 00:19:24,720 Speaker 1: they're going to have to incur these new expenses. That 358 00:19:24,760 --> 00:19:27,600 Speaker 1: makes it sound like there won't be male and voting 359 00:19:27,840 --> 00:19:31,600 Speaker 1: in a lot of places, particularly poorer states. I don't 360 00:19:31,600 --> 00:19:33,720 Speaker 1: want to say that. I think they're scrambling to do it, 361 00:19:33,760 --> 00:19:35,080 Speaker 1: and I just think there's going to be a lot 362 00:19:35,119 --> 00:19:38,440 Speaker 1: of decisions that have to be made by state election administrators, 363 00:19:38,440 --> 00:19:42,639 Speaker 1: local election administrators, local budget officers about how to do it. 364 00:19:43,000 --> 00:19:45,720 Speaker 1: I think it's too early to be negative, but I 365 00:19:45,760 --> 00:19:49,240 Speaker 1: think it's appropriate to be worried. Why is the problem 366 00:19:49,520 --> 00:19:55,520 Speaker 1: especially serious in the battleground states of Wisconsin and North Carolina. Well, 367 00:19:55,560 --> 00:19:58,359 Speaker 1: those are two states which have not had a tradition 368 00:19:58,600 --> 00:20:01,359 Speaker 1: of absentute voting or vote by mail. I mean, basically, 369 00:20:01,359 --> 00:20:03,680 Speaker 1: in a lot of statically in the West, it's either 370 00:20:03,760 --> 00:20:05,800 Speaker 1: been almost everybody, but it is the way our significant 371 00:20:05,800 --> 00:20:08,000 Speaker 1: fraction of people have been voting that way. These are 372 00:20:08,000 --> 00:20:10,840 Speaker 1: two states where people voted the traditional way, which is 373 00:20:10,920 --> 00:20:13,080 Speaker 1: in personal election day, and so part of it is 374 00:20:13,119 --> 00:20:15,399 Speaker 1: they have to make a bigger shift. And then you 375 00:20:15,440 --> 00:20:18,119 Speaker 1: do have the fact that these have divided stake governments, 376 00:20:18,240 --> 00:20:22,680 Speaker 1: and as we all know, the President and Republicans following 377 00:20:22,720 --> 00:20:26,040 Speaker 1: the President have been very hostile to vote by mail. 378 00:20:26,200 --> 00:20:29,560 Speaker 1: This is a new development. Until fairly recently, vote by 379 00:20:29,560 --> 00:20:31,399 Speaker 1: mail is not seen as a part of an issue. 380 00:20:31,400 --> 00:20:34,760 Speaker 1: And indeed, there are many Republican Secretaries of States in 381 00:20:34,800 --> 00:20:37,959 Speaker 1: the states where they're responsible for voting or election administrators 382 00:20:37,960 --> 00:20:39,840 Speaker 1: who have been very supportive of these. They were until 383 00:20:39,920 --> 00:20:42,399 Speaker 1: very recently. They're very supportive a vote by mail, and 384 00:20:42,440 --> 00:20:46,679 Speaker 1: there's no evidence that vote by mail has a partisan tilt. 385 00:20:46,760 --> 00:20:50,159 Speaker 1: In practice, all kinds of people use it. Nonetheless, the 386 00:20:50,200 --> 00:20:53,919 Speaker 1: issue has become a partisan one, and you can see 387 00:20:53,960 --> 00:20:57,480 Speaker 1: that that might be to some resistance in funding for it, 388 00:20:57,720 --> 00:21:00,720 Speaker 1: even in the state where the chief elections officer the Democrat, 389 00:21:00,800 --> 00:21:03,440 Speaker 1: of the money has got to come from a Republican legislature. 390 00:21:03,960 --> 00:21:07,680 Speaker 1: President Trump tweeted this on Tuesday. There is no way, 391 00:21:07,840 --> 00:21:10,840 Speaker 1: zero that mail in ballots will be anything less than 392 00:21:10,920 --> 00:21:15,800 Speaker 1: substantially fraudulent. Mailboxes will be robbed, ballots will be forged 393 00:21:15,840 --> 00:21:20,520 Speaker 1: and even illegally printed out and fraudulently signed. How much 394 00:21:20,560 --> 00:21:24,920 Speaker 1: of that is based in fact and how much is fiction? Oh? 395 00:21:24,960 --> 00:21:27,520 Speaker 1: I think just about none of it is based in fact. 396 00:21:27,600 --> 00:21:29,440 Speaker 1: I mean, there are studies. There are about five states 397 00:21:29,440 --> 00:21:31,600 Speaker 1: they have been heavily using mail in ballots for the 398 00:21:31,720 --> 00:21:34,400 Speaker 1: last decade. And I won't say that there's no fraud ever, 399 00:21:34,520 --> 00:21:36,719 Speaker 1: but the amount of fraud that there is is actually 400 00:21:36,760 --> 00:21:39,919 Speaker 1: quite minor, really really minor, and there's onetly no evidence 401 00:21:39,960 --> 00:21:41,600 Speaker 1: that that's had an impact on the elections. I mean, 402 00:21:41,680 --> 00:21:44,080 Speaker 1: as people have pointed out President Trump has been voting 403 00:21:44,080 --> 00:21:46,960 Speaker 1: by mail for years, as have many people in his administration. 404 00:21:47,200 --> 00:21:50,919 Speaker 1: In the last presidential election, I think something like of 405 00:21:50,920 --> 00:21:54,040 Speaker 1: the country was voting by mail and higher in certain space. 406 00:21:54,240 --> 00:21:56,680 Speaker 1: So it's not like this is a brand new thing. 407 00:21:57,000 --> 00:21:58,760 Speaker 1: It's definitely is gonna have to be scaled up in 408 00:21:58,800 --> 00:22:01,239 Speaker 1: a lot of places where hassmen common before. But I mean, 409 00:22:01,280 --> 00:22:05,359 Speaker 1: there are checks on fraud, there are signature verification requirements. 410 00:22:05,560 --> 00:22:08,320 Speaker 1: You can in effect make sure that their guarantees against 411 00:22:08,359 --> 00:22:11,880 Speaker 1: the ballots being forged. It's appropriate to worry in all 412 00:22:11,960 --> 00:22:15,480 Speaker 1: situations about the possibility of misconduct, but there's not much 413 00:22:15,520 --> 00:22:18,320 Speaker 1: evidence that this has in fact a big issue. Trump 414 00:22:18,320 --> 00:22:21,480 Speaker 1: threatened to withhold federal grants from Michigan and Nevada if 415 00:22:21,480 --> 00:22:24,879 Speaker 1: they sent out absentee ballots. Is that an empty threat 416 00:22:25,280 --> 00:22:28,720 Speaker 1: or can he actually do that. It's not clear what 417 00:22:28,880 --> 00:22:31,880 Speaker 1: legal leverage he thought he had when he made those statements. Indeed, 418 00:22:31,920 --> 00:22:34,120 Speaker 1: those statements themselves had a bunch of mistakes in them. 419 00:22:34,119 --> 00:22:36,560 Speaker 1: I think at least in Michigan, as I recall it 420 00:22:36,600 --> 00:22:38,440 Speaker 1: was the Secretary of State, there was not sending out 421 00:22:38,480 --> 00:22:41,320 Speaker 1: ballot true setting out applications, which is the first step, 422 00:22:41,520 --> 00:22:43,600 Speaker 1: and I think that was true in Nevada as well. 423 00:22:43,680 --> 00:22:46,280 Speaker 1: They were basically making the first step easier for people, 424 00:22:46,320 --> 00:22:48,760 Speaker 1: not the ballots themselves, and indeed some people might choose 425 00:22:48,800 --> 00:22:50,760 Speaker 1: it to actually put in person. So first thingctly was 426 00:22:50,800 --> 00:22:53,439 Speaker 1: in mis characterization of what they were doing. Were generally, 427 00:22:53,480 --> 00:22:55,760 Speaker 1: I don't think there is any provision in the law 428 00:22:55,840 --> 00:22:58,840 Speaker 1: that actually would allow him to do that. Do most 429 00:22:58,920 --> 00:23:02,719 Speaker 1: states have the rules in place for you know, how 430 00:23:02,760 --> 00:23:04,480 Speaker 1: they're going to mail them out, how they're going to 431 00:23:04,520 --> 00:23:06,840 Speaker 1: be counted. Are are the rules in place or are 432 00:23:06,840 --> 00:23:10,480 Speaker 1: they influx in some places? Um? I think it's less 433 00:23:10,480 --> 00:23:12,919 Speaker 1: about the rules, so that that is, I mean, I 434 00:23:12,920 --> 00:23:14,960 Speaker 1: think some of the rules may be changing. I mean 435 00:23:14,960 --> 00:23:19,000 Speaker 1: this whole question about requesting applications versus applications being sent, 436 00:23:19,080 --> 00:23:22,479 Speaker 1: maybe requesting ballots versus Governor Newsom in California said he's 437 00:23:22,480 --> 00:23:25,159 Speaker 1: sending ballots to everybody, so they maybe that some of 438 00:23:25,320 --> 00:23:30,000 Speaker 1: that maybe um influx. I think the bigger issue, uh, 439 00:23:30,359 --> 00:23:34,119 Speaker 1: is the practical one of literally having the getting the 440 00:23:34,160 --> 00:23:39,000 Speaker 1: ballots designed, printed, getting the machinery, and getting the envelopes 441 00:23:39,320 --> 00:23:41,440 Speaker 1: figuring out and some question might be as to whether 442 00:23:41,520 --> 00:23:44,359 Speaker 1: or not the postage is paid by the government, or 443 00:23:44,400 --> 00:23:46,840 Speaker 1: people are gonna be required to post postage litigation on 444 00:23:46,920 --> 00:23:50,120 Speaker 1: that um that there's there are a lot of kind 445 00:23:50,119 --> 00:23:53,879 Speaker 1: of um I would call them kind of implementation issues, 446 00:23:54,240 --> 00:23:57,280 Speaker 1: some of which might be require legal changes. Some of 447 00:23:57,280 --> 00:24:01,680 Speaker 1: them might are just about questions of practice. Let's turn 448 00:24:01,800 --> 00:24:06,760 Speaker 1: to a decision by the Texas Supreme Court on Wednesday. 449 00:24:06,880 --> 00:24:09,680 Speaker 1: The court blocked a push to expand vote by mail 450 00:24:09,840 --> 00:24:13,720 Speaker 1: two registered voters during the pandemic, saying lack of immunity 451 00:24:13,800 --> 00:24:17,520 Speaker 1: to the coronavirus doesn't count as a disability. And then 452 00:24:17,520 --> 00:24:20,520 Speaker 1: there's also a federal judges ruling in that state. There's 453 00:24:20,680 --> 00:24:23,399 Speaker 1: been two tracks of litigation in Texas, and they mentioned 454 00:24:23,400 --> 00:24:26,280 Speaker 1: earlier UH a number of states who are used what 455 00:24:26,320 --> 00:24:29,560 Speaker 1: is so called excuse absotem voting or excuse you can 456 00:24:29,640 --> 00:24:32,879 Speaker 1: only vote by mail, obtain an absentee ballot if you 457 00:24:32,920 --> 00:24:36,119 Speaker 1: followed into a certain category of excuses. One of the 458 00:24:36,160 --> 00:24:42,400 Speaker 1: common ones is illness or disability. And so one question is, obviously, 459 00:24:42,440 --> 00:24:45,040 Speaker 1: if you have coronavirus, you have a disability, But what 460 00:24:45,280 --> 00:24:47,639 Speaker 1: if given what if you're afraid that you're going to 461 00:24:47,720 --> 00:24:51,480 Speaker 1: get it? But what is su a possibility of getting it, 462 00:24:51,640 --> 00:24:55,160 Speaker 1: given that there is community transmission and there is no vaccine. 463 00:24:55,600 --> 00:24:57,639 Speaker 1: And so, for example, in New York of an acoma, 464 00:24:57,680 --> 00:24:59,840 Speaker 1: one of his executive orders in attack took the new 465 00:25:00,160 --> 00:25:03,800 Speaker 1: state definition of illness or disability. I forget which one. 466 00:25:03,800 --> 00:25:08,440 Speaker 1: It said, that's going to include the possibility of debting coronavirus? 467 00:25:08,800 --> 00:25:11,480 Speaker 1: What when it is in community transmission. That was the 468 00:25:11,600 --> 00:25:14,440 Speaker 1: argument that was being made in Texas by the litigants 469 00:25:14,520 --> 00:25:17,159 Speaker 1: there that thought that the two lower Texas courts, the 470 00:25:17,160 --> 00:25:19,040 Speaker 1: trial courts and the and the Intermediate Court of the 471 00:25:19,119 --> 00:25:23,760 Speaker 1: deals agreed that under Texas law you could define um 472 00:25:24,080 --> 00:25:27,639 Speaker 1: disability to include the lack of immunity the coronavirus. And 473 00:25:27,640 --> 00:25:29,560 Speaker 1: that was where the Texas Supreme Court said, no, no, no, 474 00:25:30,000 --> 00:25:32,879 Speaker 1: you can't do that. That's pushing it too far. So 475 00:25:32,960 --> 00:25:36,840 Speaker 1: that that excuse that that way of treating, treating kind 476 00:25:36,840 --> 00:25:40,080 Speaker 1: of the danger of getting or the the risk of 477 00:25:40,119 --> 00:25:42,840 Speaker 1: getting coronavirus if you go to a polling place, that 478 00:25:42,840 --> 00:25:45,480 Speaker 1: that was not the court defended, that was not enough 479 00:25:45,520 --> 00:25:49,600 Speaker 1: to count as a disability. The Texas Federal Court ruled 480 00:25:49,640 --> 00:25:53,639 Speaker 1: that voters afraid of catching the coronavirus can request absent 481 00:25:53,720 --> 00:25:57,120 Speaker 1: see ballots right so that's the second that's a different track, 482 00:25:57,200 --> 00:25:59,560 Speaker 1: and I think um that I think is going to 483 00:25:59,680 --> 00:26:03,000 Speaker 1: be would go up to the the US Court of 484 00:26:03,000 --> 00:26:05,119 Speaker 1: the deals with the Circuit Court of the bills for 485 00:26:05,160 --> 00:26:09,120 Speaker 1: them to decide uh that. But yeah, so as there's 486 00:26:09,160 --> 00:26:11,600 Speaker 1: often a case in our system with voting, you can 487 00:26:11,680 --> 00:26:14,840 Speaker 1: have these litigations that can run through two different both 488 00:26:14,880 --> 00:26:19,720 Speaker 1: stake courts and federal courts. The Supreme Court has handled 489 00:26:20,119 --> 00:26:23,600 Speaker 1: a voting issue recently in Wisconsin, and they've handled a 490 00:26:23,640 --> 00:26:26,879 Speaker 1: lot of different voting issues over the years. Is the 491 00:26:26,920 --> 00:26:32,280 Speaker 1: Court conservative and careful about extending voting rights? Well, that's 492 00:26:32,320 --> 00:26:33,920 Speaker 1: a good way to put it. I think one way 493 00:26:33,920 --> 00:26:37,080 Speaker 1: you could see is that the court majority is nervous 494 00:26:37,080 --> 00:26:41,760 Speaker 1: about changing the rules, um, about having lower courts say, uh, 495 00:26:41,800 --> 00:26:44,800 Speaker 1: in light of an emergency or in la proven consequence 496 00:26:44,840 --> 00:26:47,040 Speaker 1: of a certain rules, the rules need to be changed 497 00:26:47,080 --> 00:26:48,840 Speaker 1: in order to make sure that the right of available 498 00:26:48,880 --> 00:26:51,360 Speaker 1: for everybody. If you look at this as a as 499 00:26:51,359 --> 00:26:55,840 Speaker 1: a as a tension between uh, you know, adhering strictly 500 00:26:55,920 --> 00:27:00,280 Speaker 1: to the rules that are in place versus UM, well, 501 00:27:01,080 --> 00:27:04,440 Speaker 1: using the rules in a way that makes the franchise 502 00:27:04,840 --> 00:27:07,639 Speaker 1: as available as possible that people who are qualified to vote. 503 00:27:08,160 --> 00:27:11,400 Speaker 1: The majority has been is very reluctant to see departures 504 00:27:11,400 --> 00:27:13,720 Speaker 1: from the rules. Now. Part of what happened with that 505 00:27:13,760 --> 00:27:17,320 Speaker 1: Wisconsin case that you referred to back in April is 506 00:27:17,400 --> 00:27:20,640 Speaker 1: that rule change was literally on the eve of the election. Uh. 507 00:27:20,640 --> 00:27:23,000 Speaker 1: And the court has over the last decade or so, 508 00:27:23,200 --> 00:27:25,800 Speaker 1: based on our case called per Spell and it's now 509 00:27:25,840 --> 00:27:29,399 Speaker 1: called the Pursell Principle, has basically said we are we 510 00:27:29,480 --> 00:27:32,600 Speaker 1: are not gonna We're going to discourage the lower federal 511 00:27:32,720 --> 00:27:36,560 Speaker 1: courts from changing the election rules on the eve of 512 00:27:36,600 --> 00:27:38,800 Speaker 1: the election. What's the eve of the election may be 513 00:27:38,880 --> 00:27:41,040 Speaker 1: a little variable now the one and was consort really 514 00:27:41,160 --> 00:27:43,879 Speaker 1: was on the eve of the election or within a 515 00:27:43,960 --> 00:27:46,560 Speaker 1: week before the election. If some of these rules are 516 00:27:46,680 --> 00:27:50,199 Speaker 1: changed now or say in June for the for the 517 00:27:50,280 --> 00:27:54,160 Speaker 1: November election, it's not clear the p Sell principle would 518 00:27:54,200 --> 00:27:56,480 Speaker 1: kick you because one of their concerns with that that 519 00:27:56,680 --> 00:28:00,359 Speaker 1: election administrators and voters would be confused as to civil 520 00:28:00,480 --> 00:28:03,359 Speaker 1: are so a rule change that's put into place some 521 00:28:03,520 --> 00:28:06,640 Speaker 1: months before the election that might get a different response. 522 00:28:07,160 --> 00:28:10,920 Speaker 1: Is it certain that the more states that have mail 523 00:28:11,000 --> 00:28:13,960 Speaker 1: in voting, the slower the returns are going to be 524 00:28:14,080 --> 00:28:20,080 Speaker 1: on election day. That is likely, I mean certainly the ballots. Again, 525 00:28:20,119 --> 00:28:24,680 Speaker 1: one question is what's the deadline for submitting your ballot um, 526 00:28:24,800 --> 00:28:27,800 Speaker 1: and that has some states require that the ballot be 527 00:28:27,920 --> 00:28:31,399 Speaker 1: received by election day. Other states require only that the 528 00:28:31,560 --> 00:28:34,920 Speaker 1: postmarked by election day. So if the post requirement is 529 00:28:34,960 --> 00:28:38,000 Speaker 1: a postmarking requirement, and then some I felt they they'll 530 00:28:38,000 --> 00:28:41,080 Speaker 1: accompany that one with but not later than X number 531 00:28:41,080 --> 00:28:44,240 Speaker 1: of days UM after the election, maybe six days or 532 00:28:44,240 --> 00:28:47,000 Speaker 1: a week after UM. But if that's the case, yeah, 533 00:28:47,000 --> 00:28:48,600 Speaker 1: ballots are going to be coming in for quite some 534 00:28:48,640 --> 00:28:51,719 Speaker 1: time now much well depend on how close the election is. 535 00:28:52,040 --> 00:28:55,800 Speaker 1: But yeah, because very I mean certainly, states like California 536 00:28:55,880 --> 00:28:59,280 Speaker 1: and Washington State, which is a heavy users of post 537 00:28:59,320 --> 00:29:02,480 Speaker 1: by mail, there's a counting the vote days and days later. 538 00:29:02,800 --> 00:29:06,479 Speaker 1: Thanks rich that's Richard Brafal's professor at Columbia Law School. 539 00:29:06,840 --> 00:29:08,920 Speaker 1: I'm Jeanne Grossoe and this is Bloomberg