Speaker 1: This is Bloomberg Law with June Brussel from Bloomberg Radio.
Speaker 1: There are five major publishers in the country and the
Speaker 1: federal government wants it to stay that way. So it's
Speaker 1: suing to stop the number one publisher, Penguin Random House
Speaker 1: from buying the number four publisher, Simon and Schuster in
Speaker 1: a more than two billion dollar deal. Joining me is
Speaker 1: Jennifer Bloomberg Intelligence Senior litigation analyst. Well, first of all,
Speaker 1: what is the goal of this merger? Well, the goal
Speaker 1: of the merger, according to what the companies are saying now,
Speaker 1: is to become more efficient. I mean, essentially if it's
Speaker 1: what most big merging parties would say, but in order
Speaker 1: to provide better cloud or better leverage as against Amazon,
Speaker 1: you know, which is a big seller of books out there,
Speaker 1: and also just to become more efficient as some of
Speaker 1: the advances that go to the really big top selling
Speaker 1: authors have gone up. The Justice Department is suing and
Speaker 1: it says if the merger went ahead, the deal would
Speaker 1: give Penguin Random House nearly half the market for publishing
Speaker 1: rights to blockbuster books, while it's nearest competitors will be
Speaker 1: less than half its size. Tell us about why the
Speaker 1: Justice Department is suing here. Well, it's an interesting theory
Speaker 1: because usually when two companies come together, what the Justice
Speaker 1: Department is looking at is whether they are too competing
Speaker 1: sellers of products, and as a result of the merger,
Speaker 1: the price of those products they sell will go up
Speaker 1: because they'll have more market power and they'll have the
Speaker 1: ability to increase the price. This is what's called them
Speaker 1: ansony case. They are buyers of products, so essentially they
Speaker 1: are paying authors for the rights to publish those authors
Speaker 1: works their books. And the concern here is that if
Speaker 1: they come together and they have that much leverage, they're
Speaker 1: that much bigger than all the other publishing houses that
Speaker 1: could be bidding for these top selling books, that authors
Speaker 1: will start getting paid less. And as authors start to
Speaker 1: get paid less, fewer can afford to write, and the
Speaker 1: upshot would be fewer books for consumers to buy, less innovation,
Speaker 1: less variety. So the concern here is the fees that
Speaker 1: get paid to authors to write books, and they're mostly
Speaker 1: focusing on big, top selling authors. They're arguing that a
Speaker 1: top selling author, the competition will be less because it
Speaker 1: will be down to four large publishers instead of five. Argument. Yes,
Speaker 1: so it's four rather than five, which a five to
Speaker 1: four merger. You know, it depends on the industry, it
Speaker 1: depends on market shares. Sometimes these kinds of cases have
Speaker 1: been successful for the d o J and sometimes not.
Speaker 1: Five to four is sort of borderline, But in this
Speaker 1: case it looks like the market would be very weighed
Speaker 1: toward the merged entity. What the d o J is
Speaker 1: saying here, they don't give exact market shares, but what
Speaker 1: they're saying is that together they be far larger than
Speaker 1: the other three that are left, So even unilaterally, they'd
Speaker 1: have this ability to depress the wages being paid to authors.
Speaker 1: And they do, actually, June have a lot of examples
Speaker 1: in the complaint of bidding that occurred that drove these
Speaker 1: advances way up. That was just bidding between these two
Speaker 1: companies Penguin Random House and Simon and Schuster that ultimately
Speaker 1: up some of these advances by sometimes even in the
Speaker 1: millions of dollars. So they do have examples of where
Speaker 1: the two of them go head to head and compete
Speaker 1: to increase those prices. So theoretically, as a result of
Speaker 1: this merger, that might not happen anymore because the other
Speaker 1: three that are left just may simply not be able
Speaker 1: to play in the same ballpark. Does any part of
Speaker 1: the Justice Department's intent to hear concern the fact that
Speaker 1: one of these companies is German. Oh no, I don't
Speaker 1: think so at all. You know, if there was any
Speaker 1: kind of concern about a German buyer, it would actually
Speaker 1: be dealt with the Committee on Foreign Investment in the
Speaker 1: US over the Department of Justice, that they'll look at
Speaker 1: foreign buyers and ask whether there's a US national security
Speaker 1: issue in this case. I don't think that is of
Speaker 1: concern or even being contemplated by the d J. I
Speaker 1: think the main issue here is a new interest, particularly
Speaker 1: pushed by Merritt Garland and promoted by Spiden's July executive order,
Speaker 1: to look at the impact of mergers on labor and
Speaker 1: on prices that are paid. It's always been a theory
Speaker 1: of harmon anti trust, but not used often and rarely
Speaker 1: is there a lawsuit brought based on this theory. So
Speaker 1: it's kind of novel. I just say kind of because
Speaker 1: it is a valid antitrust theory. There have been mergers
Speaker 1: that have settled in the past and not gone to
Speaker 1: litigation on the basis of this kind of depressing the
Speaker 1: wages or monopsony type theory, particularly in agriculture. But what
Speaker 1: we haven't seen as a lawsuit on this basis, so
Speaker 1: it's going to be very interesting to see what happens
Speaker 1: in court here. The Author's Guild, which supports the d
Speaker 1: j's complaints, said, the DJ statements recognized the burden book
Speaker 1: authors currently face, and we hope that today's decision is
Speaker 1: a signal that the do J may be finally expanding
Speaker 1: the definition of antitrust to consider the impact don creators.
Speaker 1: Do you think that's what's going on here? Well, I
Speaker 1: think it's meant to describe what I just talked about.
Speaker 1: I have seen a lot of references to the concept
Speaker 1: that they're expanding ideas an anti trust and expanding the harms.
Speaker 1: I don't so much see it as an expansion because
Speaker 1: impact on creators, or not just creators, but impact on
Speaker 1: any kind of a wage earner, let's say, has been
Speaker 1: an issue in anti trust in the past. It just
Speaker 1: doesn't come up a lot, and we haven't seen a lawsuit,
Speaker 1: so I think to some observers this seems very novel.
Speaker 1: But in the agriculture markets, for example, the Department of
Speaker 1: Justice will always look at the prices paid to the
Speaker 1: small farmers by lets say, meat processors that are trying
Speaker 1: to merge. And in fact, there have been the antitrust
Speaker 1: price fixing lawsuits in the past related to the fixing
Speaker 1: of wages paid to creators in Silicon Valley. So it's
Speaker 1: not the first time that this has been considered an
Speaker 1: anti trust harm. It's just the first time we're going
Speaker 1: to see a merger that is challenged in court on
Speaker 1: the basis of that theory. So J and the published
Speaker 1: just say they'll fight this lawsuit. What are their arguments
Speaker 1: against it? Right, Well, I think they have a lot
Speaker 1: of different responses here. There's some very interesting issues. I
Speaker 1: think first they say, look, this is going to create
Speaker 1: efficiencies and allow us to deal or have better cloud
Speaker 1: against Amazon and deal with this, you know, entity that
Speaker 1: drives the price for books down. They also say that
Speaker 1: the relevant market is defined by the DJ is not correct.
Speaker 1: So the DJ is considering here only publishing by the
Speaker 1: Big five. As you noted, they're calling it a five
Speaker 1: to four. But there are other publishing houses, there are
Speaker 1: smaller publishers, there are independent publishers, and there's also self publishing.
Speaker 1: And I think if you include all of those in
Speaker 1: the market, what it means is that the market shairs
Speaker 1: of these two merging parties would be lower. And I
Speaker 1: think they can argue that they're not looking at the
Speaker 1: right market and they also face competition from some of
Speaker 1: these smaller publishers, and therefore it's not really a five
Speaker 1: to four, you know. They can argue that as well.
Speaker 1: How much does Amazon play in year as a factor.
Speaker 1: The Amazon issue is interesting because the Amazon defense I
Speaker 1: think is used fairly often nowadays in mergers because it's
Speaker 1: become so big and such a conglomerate and involved in
Speaker 1: in so many different areas in industries, UH, particularly in
Speaker 1: the types of items that itself and so the need
Speaker 1: to come together to fight against Amazon, I think is
Speaker 1: a common defense. What I'll say about it in the case,
Speaker 1: it's interesting because the d o J does fight to
Speaker 1: one document where one of the executives from one of
Speaker 1: the company says, well, I don't really buy into that defense.
Speaker 1: I get that that's what our defense is now, but
Speaker 1: I don't really buy into it. And and they've also
Speaker 1: cited two documents that show that the intention post merger
Speaker 1: would be to align more with Amazon, and not necessarily
Speaker 1: to have better leverage against Amazon. So I think the
Speaker 1: evidence is going to have to show how the Amazon
Speaker 1: factor really weighs in here. But the only other thing
Speaker 1: I'll say is that an argument that we need to
Speaker 1: come together to fight against some of a really big
Speaker 1: b m off in in the M and A world
Speaker 1: is never really a great argument. Um, It's made a lot,
Speaker 1: it doesn't usually work. So Um, what will be the
Speaker 1: main question here? Is it mainly what the market is?
Speaker 1: What the market is is a big question, and what
Speaker 1: the shares are and whether this is truly a five
Speaker 1: to four. I think where the efficiencies are and what
Speaker 1: they are will be a big question, and that's obviously
Speaker 1: going to depend on the documents and the facts. These
Speaker 1: companies obviously studied the efficiencies that they expect to be generated,
Speaker 1: and it will be important to see what they're saying
Speaker 1: about it and why they really need to merge. If
Speaker 1: they have documents that just simply say, look, we'll take
Speaker 1: over the market will be this enormous number one by
Speaker 1: virtue of this deal, obviously that's going to be unhelpful
Speaker 1: to them. Are they still unaware of what emails and
Speaker 1: documents like that due to a case. You know, emails
Speaker 1: and documents like that always exist, and and the issue
Speaker 1: is really what is the bulk of the evidence show?
Speaker 1: What is the bulk of the evidence say? It's easy
Speaker 1: to take emails and documents and sort of cherry pick
Speaker 1: and make a company look bad. And certainly what the
Speaker 1: DJ sites in his complaint is going to be some
Speaker 1: of the better documents that support its case. But it
Speaker 1: depends what else is out there, and it may be
Speaker 1: that there are an overwhelming number of documents to talk
Speaker 1: about the efficiencies to be derived, pro competitive efficiencies to
Speaker 1: be derived from the deal, or the need to come
Speaker 1: together to be able to better distribute books by publishers,
Speaker 1: you know, provide better backing for the book so that
Speaker 1: they sell better, which would be a benefit to authors.
Speaker 1: So you know, as much as they understand what those
Speaker 1: documents say. In these big companies, you can have a
Speaker 1: compliance program, but you can't control what all of those
Speaker 1: documents say. But if you have a handful of bad
Speaker 1: documents out of a very large mass, I don't think
Speaker 1: that's necessarily going to sway a judge. Is this lawsuit
Speaker 1: a sign of more aggressive antitrust enforcement in the Biden administration.
Speaker 1: I do think it is June. Yes. I mean they're
Speaker 1: going to court with what is a new theory to
Speaker 1: be tested in court. That's always a little bit risky. Um,
Speaker 1: they're going to court and what they're calling a five
Speaker 1: to four merger, which again isn't you know, it's one
Speaker 1: of these borderline situations. You know, six to five is
Speaker 1: rarely ever going to be challenged, A four to three
Speaker 1: is probably often going to be challenged. That five to
Speaker 1: four is right in between. It's sort of as sometimes
Speaker 1: will be challenged. And it was your very first impression
Speaker 1: when you said, look, it's the five to four. Do
Speaker 1: they really think that there will be harm in the market.
Speaker 1: I think a judge will be asking the same thing.
Speaker 1: So it's not the easiest case for them. It's not
Speaker 1: necessarily a slam dunk. And and because of that, and
Speaker 1: and it has focuses on labor, which which again is
Speaker 1: somewhat new. So because of all that, I would say, yes,
Speaker 1: it is showing that they intend to be more aggressive.
Speaker 1: So in the past, we've talked about, you know, the
Speaker 1: push for more aggressive antitrust enforcement, particularly with the tech companies.
Speaker 1: Do you see any focus of the Biden administration. I
Speaker 1: think the Biden administration is focusing across the board on
Speaker 1: industries that they believe in the past twenty years of
Speaker 1: consolidated quite a bit and have probably hit what they
Speaker 1: view as what should be the peak of their consolidation. Now,
Speaker 1: they haven't really talked about publishing. They generally tend to
Speaker 1: talk about agriculture, airlines, some of the big tech areas,
Speaker 1: you know, social media platforms of course, with Facebook having
Speaker 1: bought Instagram and WhatsApp, even beer markets. They talk about
Speaker 1: pharmaceutical certainly. So I haven't really heard them talk about publishing.
Speaker 1: But it is a market that has seen quite a
Speaker 1: bit of consolidation, and it is down to five. There
Speaker 1: used to be quite a few bigger entities you saw.
Speaker 1: Let me just pull it up. I have a list here.
Speaker 1: And by the way, there also is a past history
Speaker 1: of collusion amongst the Big five. In two thousand twelve,
Speaker 1: there was a lawsuit in which a district court determined
Speaker 1: that they'd engaged in a price fixing conspiracy. So the
Speaker 1: end of these companies are not necessarily completely in the
Speaker 1: clear on this stuff. But you've seen Random House and
Speaker 1: Schuster haven't done. I think a lot of acquiring but
Speaker 1: HarperCollins Publishers recently acquired Houghton Mifflin Hardcourt and had Chet
Speaker 1: recently acquired Workman Publishing. So and I think before those
Speaker 1: two deals that were also a few smaller deals. And
Speaker 1: I think generally what the d o J and FTC
Speaker 1: want to do at this point is just stem the
Speaker 1: tide of further consolidation in industries that are fairly consolidated.
Speaker 1: And I say fairly consolidated, because again we're talking about
Speaker 1: five here and maybe more depending on how you define
Speaker 1: the market. But there has been so much criticism from
Speaker 1: the antitrust bar, from academics, from economists in the last
Speaker 1: ten years, and so many studies done showing that across
Speaker 1: the board that lacks antitrust enforcement has allowed for too
Speaker 1: much consolidation just in general, not a specific industry, but
Speaker 1: just in general. So I think now the focus for
Speaker 1: the d o J and FTC just generally we're just
Speaker 1: going to stem the tide. So every time we get
Speaker 1: a merger in front of us that is in an
Speaker 1: industry where we've seen quite a bit of consolidation in
Speaker 1: the last ten or twenty years, we're going to look
Speaker 1: more closely at that industry and possibly challenge that deal.
Speaker 1: I just wonder how many books really have competitive publishing.
Speaker 1: You know, you have a couple of big titles a year,
Speaker 1: you have former President Obama, you have, but how many
Speaker 1: of these books really have this kind of competitive auctioning
Speaker 1: and stuff. It seems like it's just a handful. Really. Yeah,
Speaker 1: you know, they don't really get into volume, and to
Speaker 1: be perfectly honest, for antitrust purposes, volume doesn't really matter.
Speaker 1: You know, two big companies can come together and even
Speaker 1: if it's just a tiny segment of their businesses representing
Speaker 1: a very small percentage of their own revenues um that
Speaker 1: could create harm in the market, the DOJ or the
Speaker 1: FTC will still go ahead and challenge that because it's
Speaker 1: not like, well, if there's only harms a handful of consumers,
Speaker 1: are small group of consumers, well then you know, we'll
Speaker 1: let it go. If it could harm you know, any
Speaker 1: small group of consumers, they will go ahead and challenge
Speaker 1: the deal. And I think that at least what they
Speaker 1: talk about in this case is that the advances, even
Speaker 1: if it is a fairly small group of authors in
Speaker 1: the scheme of all publishing, that the advances that have
Speaker 1: been extended by the Big Vibe are are huge in
Speaker 1: the last couple of years, you know, in the billions,
Speaker 1: and that supports the writing. So Penguin, Random House and
Speaker 1: Simon and Schuster said that they fight this lawsuit vigorously,
Speaker 1: noting that the government had not alleged that the deal
Speaker 1: would harm competition in book sales. Where does that factor in. Yeah,
Speaker 1: they're pointing to the fact that this is a monopsony
Speaker 1: case and not a monopoly case. They're saying, Look, they're
Speaker 1: not saying that book prices for consumers like you and
Speaker 1: me will go up, that when you go to buy
Speaker 1: a book, the prices are going to be higher. That
Speaker 1: what they're doing isn't going to impact those prices, and
Speaker 1: that's the more traditional anti trust harm. So but I
Speaker 1: think that's really just smoking mirrors because you know, again,
Speaker 1: this is a monopsony case and what they're alleging is
Speaker 1: harm to what's paid to the authors, and we can't
Speaker 1: just ignore that. I mean, that is an antitrust harm,
Speaker 1: even if we're not talking about harm to the people
Speaker 1: who buy the book. As always, it's great to have
Speaker 1: you on the show. Agin that's Bloomberg Intelligence senior litigation
Speaker 1: analyst Jennifer Ree. A case over a center at a
Speaker 1: Texas community college found its way to the highest court
Speaker 1: in the land this week. David Wilson had a rocky
Speaker 1: relationship with other trustees during his tenure on the Houston
Speaker 1: Community College System board. So when the board centered Wilson
Speaker 1: for his constant criticism and took steps to limit his
Speaker 1: legislative privileges, Wilson sued, alleging of violation of his First
Speaker 1: Amendment rights. Jonesice is on both sides of the ideological spectrum,
Speaker 1: seemed ready to side with the college. Here at jonestice
Speaker 1: is Samuel Alito and Sonya. So to Mayor, this is
Speaker 1: a very easy case. One person says something derogatory about
Speaker 1: another person, and then the other person responds by saying
Speaker 1: something derogatory about the first person. That's that's not a violation.
Speaker 1: Nobody's free speech rights are violated. There, You've got an
Speaker 1: easy case on censure. Historically joining me his First Amendment
Speaker 1: law expert Eugene Valla, a professor at u c l
Speaker 1: A Law School, Eugene tell us about Wilson's relationship with
Speaker 1: the board. So David Wilson was an elected member of
Speaker 1: the community College Board and was a critic of other
Speaker 1: board members. He voiced concerns that the trustees were violating
Speaker 1: the boards by laws. He arranged robo calls regarding the
Speaker 1: board's action. He filed the lawsuit against the individual board
Speaker 1: trustees and against the community college system, and he hired
Speaker 1: a private investigator to determine whether one of the trustees
Speaker 1: resided in the district in which he was elected. He
Speaker 1: had a website where he was criticizing fellow trustees and
Speaker 1: the Houston Community College System, so they thought he wasn't
Speaker 1: playing with others, and they censured him. They publicly chastised him,
Speaker 1: and they also suspended a few of his privileges having
Speaker 1: to do the reimbursement for various expenses and such. But
Speaker 1: the key question facing the U. S. Supreme Court is
Speaker 1: whether this censure, this public censure for Wilson's speech, is
Speaker 1: a violation of Wilson's First Amendment right. Explain why the
Speaker 1: Fifth Circuit allowed the case to proceed. So the Fifth
Speaker 1: Circuit concluded that censure is essentially a form of official action,
Speaker 1: that it's a retaliation for constitutionally protected speech, and that
Speaker 1: therefore it is presumptively unconstitutional because it's a violation of
Speaker 1: the First Amendment to retaliate for peach. And if you
Speaker 1: think about it, in other contexts, censers are seen as
Speaker 1: more than just government criticism. They're seen as a kind
Speaker 1: of formal disciplinary action. For example, generally speaking, before a
Speaker 1: lawyer can be formally censured by the bar, not even
Speaker 1: suspended or debarred, but just formally censured. They're generally speaking,
Speaker 1: have to be here rings if he is being censured
Speaker 1: for his constitutionally protected speech, there might well be a
Speaker 1: First Amendment violation. So the circuit concluded that likewise, this
Speaker 1: sort of censure is more than just government speech criticizing
Speaker 1: a member, but rather it is essentially a form of
Speaker 1: discipline reaction of subject of First Amendment constraint. The question
Speaker 1: before the US Supreme Court is whether that's indeed so,
Speaker 1: or whether that it's either just government speech the government
Speaker 1: can engage in under any circumstances, or perhaps whether more specifically,
Speaker 1: there's just a tradition of government bodies being able to
Speaker 1: censure their own members indeed as a discipline reaction, and
Speaker 1: that that makes it quite different from situations where there
Speaker 1: are employees. Let's say, are students or members of the
Speaker 1: bar or doctors being censured by administrative board. What were
Speaker 1: the main concerns that Justice has had, Well, there were
Speaker 1: a couple. One was that they were skeptical that just
Speaker 1: a label censure is really that significant. Here they pointed
Speaker 1: out that, of course the government can speak out in
Speaker 1: all sorts of ways, including about particular people, especially in
Speaker 1: the context of political fights among elected officials. So they
Speaker 1: were skeptical that there is really a sharp divide between
Speaker 1: censure and ordinary government speech again, at least when it
Speaker 1: comes to speech about government officials. And the other concerns
Speaker 1: that they had is just there's a pretty long standing
Speaker 1: tradition of government bodies being able to center their own members.
Speaker 1: Houses of Congress are entitled to and often do, censure
Speaker 1: their own members, and sometimes they do so for the
Speaker 1: members speech, and the justices care a lot about tradition.
Speaker 1: Occasionally they do invalidate longstanding traditions, but they're quite hesitant
Speaker 1: to do so. Did some of the justices express concerns
Speaker 1: about ruling on clashes between politicians and getting into that area, right,
Speaker 1: But I think specifically what they were concerned about was
Speaker 1: interfering with what they understand to be a very specific
Speaker 1: kind of class, which is a class which is a
Speaker 1: war of words. Somebody says something sharply criticizing his colleagues,
Speaker 1: then they say something sharply criticizing him. I think there
Speaker 1: are many of them. Took the view that that's really
Speaker 1: something that's kind of normal in politics. Now. Not all
Speaker 1: clashes among politicians are immune from constitutional scrutiny. So the
Speaker 1: Supreme Court, as for example, held that UM Congress is
Speaker 1: limited in its ability to just exclude members from Congress.
Speaker 1: That's a tangible action, and that needs to be consistent
Speaker 1: with the specific rules for expulsion that the Constitution sets forth. Likewise,
Speaker 1: accord in another case that that you can't just a
Speaker 1: state legislature can just exclude an elected member based on
Speaker 1: his speech. But when it comes to these kinds of
Speaker 1: essentially mutual public criticisms, I think the justices I think
Speaker 1: that that's something that ought to be left to the
Speaker 1: political process. So both liberal Justice Sonia Sotomayoran conservative Justice
Speaker 1: Samuel Alito said this was an easy case on censure.
Speaker 1: Does that tell you where the Court is going? Yeah.
Speaker 1: It founded from the argument that the justices would reverse
Speaker 1: the Fifth Circuit and say that this kind of political
Speaker 1: censure is basically immune from first amoment's scrutiny. The interesting
Speaker 1: question is how broad the opinion will be. So, for example,
Speaker 1: you can imagine an opinion that says, well, any kind
Speaker 1: of center is just government speech, and the government is
Speaker 1: entitled to say what I want. That would suggest that
Speaker 1: the bar could censure a lawyer simply because it doesn't
Speaker 1: like his politics, or that the government as employer, let's say,
Speaker 1: university could formally censure a faculty member for the faculty
Speaker 1: member's research. Let's say that would be quite a broad
Speaker 1: ruling in might unduly interfere with First Amendment rights in
Speaker 1: some situations, because in any context, the law does recognize
Speaker 1: that censure formal reprimand is a form of discipline reaction,
Speaker 1: kind of a form of employment action. That's not quite
Speaker 1: the same, of course as firing or demotion, but that's
Speaker 1: in that same category. Or it could decide in a
Speaker 1: narrowor theory, which is simply that this is a form
Speaker 1: of government speech that has long been recognized as within
Speaker 1: government power, precisely because it's politicians who are fighting at
Speaker 1: out with each other, and all of them have political power,
Speaker 1: and as a result that should be left to the
Speaker 1: political process. Justice Kavanaugh said, do we have to get
Speaker 1: into any of this in this case? Does it seem
Speaker 1: as if they're more likely to issue a narrow ruling?
Speaker 1: That's always difficult to predict. A lot depends on who's
Speaker 1: assigned that to right, the opinion of what position they're
Speaker 1: inclined to take, uh, of course, what they think they
Speaker 1: can convince their colleagues of. But colleagues are often are
Speaker 1: often willing to differ in some measure to the authoring justice.
Speaker 1: Very hard to predict. For more Lark, do you think
Speaker 1: that if they don't rule in Wilson's favor that it
Speaker 1: could have a chilling effect on speech at these you know,
Speaker 1: school boards? Well, again, I think the question is how
Speaker 1: broad the decision is going to be. If they say, hey,
Speaker 1: government speech, government can centure anybody who wants, and then
Speaker 1: as a result, the government does start um formally censuring again,
Speaker 1: let's say university faculty members, students, uh, doctors, lawyers for
Speaker 1: their speech. Then I think a lot of people would
Speaker 1: be chilled because it's the kind of formal government action
Speaker 1: that goes into your file that might be used as
Speaker 1: a basis in the future for increasing punishments in other situations,
Speaker 1: it will be understood by the public as kind of
Speaker 1: a disciplinary measure. So yes, I do think that would
Speaker 1: be quite chilling. On the other hand, if all they
Speaker 1: say is well, government elected officials are entitled to censure
Speaker 1: their colleagues, I don't think it will be particularly chilling
Speaker 1: because these are political actors. You have to have a
Speaker 1: thick skin if you're going to be a politician. Even
Speaker 1: somebody who just is elected elected to a relatively lower
Speaker 1: level office like community college trustees board, presumably who are
Speaker 1: familiar with sharp criticism from voters, from the media, and
Speaker 1: from your colleagues, and presumably you're not going to be
Speaker 1: much deterred by it. Do you think they took this
Speaker 1: case because the Fifth Circuit was way out of line
Speaker 1: or they just like interesting free speech cases. You know,
Speaker 1: it's an interesting question. Houston Community College Systems petition claims
Speaker 1: that there is a disagreement among lower courts as a
Speaker 1: so called circuit split, with a fifth Circuit taking one
Speaker 1: view and other circuits taking another, and that's that's often
Speaker 1: an important ground for for the court to hear a
Speaker 1: case to resolve the disagreement among lower courts first of them.
Speaker 1: It is supposed to be the state throughout the country.
Speaker 1: Thanks Eugene. That's Professor Eugene Volk of u c l
Speaker 1: A Law School. Coming up next, the Supreme Court signals
Speaker 1: it will strike down New York's gun control law. I'm
Speaker 1: June Grosso and you're listening to Bloomberg. Thanks Eugene. That's
Speaker 1: Professor Eugene Vallak of u c l A Law School.
Speaker 1: And that's it for this edition of The Bloomberg Law Show.
Speaker 1: Remember you can always get the latest legal news on
Speaker 1: our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify,
Speaker 1: and at www dot Bloomberg dot com, slash podcast Slash Law,
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Speaker 1: week night at ten pm Wall Street Time. I'm June
Speaker 1: Grosso and you're listening to Bloomberg.