1
00:00:02,759 --> 00:00:07,000
Speaker 1: This is Bloomberg Law, with June Grosseol from Bloomberg Radio.

2
00:00:08,440 --> 00:00:10,639
Speaker 2: I have a warm spot in my heart for TikTok

3
00:00:10,720 --> 00:00:15,319
Speaker 2: because I won youth by thirty four points, and there

4
00:00:15,320 --> 00:00:18,239
Speaker 2: are those that say that TikTok has something to do

5
00:00:18,320 --> 00:00:18,720
Speaker 2: with it.

6
00:00:18,880 --> 00:00:21,919
Speaker 3: Donald Trump may now have a warm spot in his

7
00:00:22,040 --> 00:00:25,800
Speaker 3: heart for TikTok, but the ban on the wildly popular

8
00:00:25,880 --> 00:00:29,240
Speaker 3: app will go into effect on Sunday, and keeping his

9
00:00:29,400 --> 00:00:33,199
Speaker 3: promise to negotiate a solution will take more than just

10
00:00:33,320 --> 00:00:37,560
Speaker 3: good intentions. On Friday, the Supreme Court closed the door

11
00:00:37,600 --> 00:00:42,000
Speaker 3: to a legal solution, unanimously upholding the law banning TikTok.

12
00:00:42,520 --> 00:00:45,840
Speaker 3: The Court found that the risk to national security posed

13
00:00:45,880 --> 00:00:50,320
Speaker 3: by its ties to China outweighed concerns about limiting speech

14
00:00:50,479 --> 00:00:53,159
Speaker 3: by the app or its one hundred and seventy million

15
00:00:53,320 --> 00:00:57,840
Speaker 3: users in the US. The decision was widely expected after

16
00:00:57,880 --> 00:01:02,800
Speaker 3: the oral arguments, in which hostices like Brett Kavanaugh repeatedly

17
00:01:02,880 --> 00:01:07,600
Speaker 3: signed the government's concerns about its Chinese control and data collection.

18
00:01:08,360 --> 00:01:12,319
Speaker 4: I think Congress and the President were concerned that China

19
00:01:12,440 --> 00:01:16,520
Speaker 4: was accessing information about millions of Americans. Tens of millions

20
00:01:16,520 --> 00:01:21,080
Speaker 4: of Americans, including teenagers, people in their twenties, that they

21
00:01:21,120 --> 00:01:26,399
Speaker 4: would use that information over time to develop spies, to

22
00:01:26,520 --> 00:01:30,880
Speaker 4: turn people to blackmail people, people who a generation from

23
00:01:30,880 --> 00:01:33,480
Speaker 4: now will be working in the FBI or the CIA.

24
00:01:34,040 --> 00:01:36,880
Speaker 3: Joining me is Eric Goldman, a professor at Santa Clara

25
00:01:37,000 --> 00:01:39,960
Speaker 3: University Law School and co director of the High Tech

26
00:01:40,040 --> 00:01:43,959
Speaker 3: Law Institute. Eric tell us about the Court's reasoning in

27
00:01:44,280 --> 00:01:46,800
Speaker 3: deciding that TikTok ban was okay.

28
00:01:47,280 --> 00:01:52,400
Speaker 5: The Court upheld the ban on TikTok using a medium

29
00:01:52,520 --> 00:01:56,640
Speaker 5: level of constitutional scrutiny, and in so doing that they

30
00:01:56,680 --> 00:02:02,400
Speaker 5: gave substantial credit to Congress's findings that TikTok posed a

31
00:02:02,480 --> 00:02:07,280
Speaker 5: threat to national security because of the Chinese government's capacity

32
00:02:07,600 --> 00:02:10,560
Speaker 5: to capture sensitive US resident data.

33
00:02:11,280 --> 00:02:14,280
Speaker 3: What did they say about the free speech rights of

34
00:02:14,400 --> 00:02:16,359
Speaker 3: TikTok and the content creators.

35
00:02:16,760 --> 00:02:20,240
Speaker 5: They didn't really talk about the free speech right so much.

36
00:02:20,600 --> 00:02:24,640
Speaker 5: And it's really a gaping pole in the opinion that

37
00:02:25,040 --> 00:02:28,360
Speaker 5: the Court doesn't really seem to care that one hundred

38
00:02:28,360 --> 00:02:30,600
Speaker 5: and seventy million Americans are going to have to change

39
00:02:30,639 --> 00:02:33,400
Speaker 5: how they talk to each other. That just didn't really

40
00:02:33,760 --> 00:02:35,519
Speaker 5: compute in the court's calculus.

41
00:02:35,840 --> 00:02:39,720
Speaker 3: When a court faces the executive branch and the legislative

42
00:02:39,760 --> 00:02:43,240
Speaker 3: branch saying they're a national security concerns, Do they sort

43
00:02:43,240 --> 00:02:44,760
Speaker 3: of just close up shop?

44
00:02:45,240 --> 00:02:48,720
Speaker 5: Not always. National security concerns aren't a free past around

45
00:02:48,760 --> 00:02:52,360
Speaker 5: the First Amendment. But in this case, the Court was

46
00:02:52,440 --> 00:02:57,720
Speaker 5: extraordinarily deferential to those findings. And that's impart because this

47
00:02:57,840 --> 00:03:01,760
Speaker 5: case did not go through normal to review by its

48
00:03:01,760 --> 00:03:05,040
Speaker 5: own terms. It skipped one of the normal steps where

49
00:03:05,080 --> 00:03:07,680
Speaker 5: the facts are developed, and so many of the facts

50
00:03:07,680 --> 00:03:11,280
Speaker 5: that were posed by the bill that the Court accepted

51
00:03:11,520 --> 00:03:13,880
Speaker 5: might have been more aggressively challenged if there have been

52
00:03:13,919 --> 00:03:17,040
Speaker 5: a chance to contest those facts in the lower court.

53
00:03:17,280 --> 00:03:20,720
Speaker 3: There was some discussion during the oral arguments about the

54
00:03:20,800 --> 00:03:24,440
Speaker 3: secretive nature of some of the evidence. Did that come

55
00:03:24,440 --> 00:03:25,280
Speaker 3: into play at all?

56
00:03:25,720 --> 00:03:29,280
Speaker 5: It did not. The Court disregarded all the secret evidence,

57
00:03:29,360 --> 00:03:31,960
Speaker 5: as did the lower court that depined upon this case,

58
00:03:32,240 --> 00:03:35,480
Speaker 5: and they relied solely upon the justifications that were offered

59
00:03:35,600 --> 00:03:36,200
Speaker 5: in public.

60
00:03:36,800 --> 00:03:40,040
Speaker 3: During the oral arguments, it seemed like Justice Gorsich might

61
00:03:40,200 --> 00:03:43,600
Speaker 3: be the one vote to strike down the TikTok ban,

62
00:03:44,080 --> 00:03:47,360
Speaker 3: but he voted with all the other justices to uphold

63
00:03:47,360 --> 00:03:50,440
Speaker 3: the ban. What did he say in his concurring opinion.

64
00:03:50,560 --> 00:03:54,080
Speaker 5: Justice Goursach raised a number of concerns about both the

65
00:03:54,120 --> 00:03:57,840
Speaker 5: procedure and the substance of the Court's ruling, And yet

66
00:03:58,040 --> 00:04:01,360
Speaker 5: he also seems to be taking in incredibly hard line

67
00:04:01,600 --> 00:04:04,160
Speaker 5: in his opinion. He might have been suggesting that he

68
00:04:04,200 --> 00:04:07,440
Speaker 5: would have upheld the law even if the most rigorous

69
00:04:07,520 --> 00:04:10,440
Speaker 5: level of constitutional scrutiny would have applied. And so I

70
00:04:10,480 --> 00:04:13,920
Speaker 5: think in the end, there was this senophobia, this fear

71
00:04:13,920 --> 00:04:17,440
Speaker 5: of China that pervades the bill and unfortunately pervaded the

72
00:04:17,440 --> 00:04:21,240
Speaker 5: Supreme Courts of Banton as well. And Justice Gorsuch definitely

73
00:04:21,240 --> 00:04:22,720
Speaker 5: bought into that sinophobia.

74
00:04:23,120 --> 00:04:25,760
Speaker 3: What was the standard of scrutiny that the court used

75
00:04:25,839 --> 00:04:28,520
Speaker 3: in analyzing the ban?

76
00:04:29,240 --> 00:04:31,479
Speaker 5: What the Court did is that they said that this

77
00:04:31,720 --> 00:04:36,880
Speaker 5: law was content neutral, not content based, and they said

78
00:04:36,920 --> 00:04:40,719
Speaker 5: that all it does is just dictate who can own TikTok,

79
00:04:41,040 --> 00:04:45,240
Speaker 5: and that's a content neutral way of controlling speech. To me,

80
00:04:45,440 --> 00:04:49,400
Speaker 5: that's just mockable. That's ridiculous to think that determining the

81
00:04:49,440 --> 00:04:53,200
Speaker 5: owner of a speech venue has no impact on the

82
00:04:53,279 --> 00:04:55,400
Speaker 5: speech that will be available on the venue. We see

83
00:04:55,440 --> 00:04:58,360
Speaker 5: that all the time when media companies change ownership, new

84
00:04:58,400 --> 00:05:02,200
Speaker 5: owners come in the policy seeds of that publication change

85
00:05:02,279 --> 00:05:04,719
Speaker 5: and that's going to happen here as well. So the

86
00:05:04,800 --> 00:05:07,960
Speaker 5: Court really cut an a elect corner by saying that it

87
00:05:08,120 --> 00:05:11,240
Speaker 5: wasn't based on the content that was available on TikTok,

88
00:05:11,440 --> 00:05:13,680
Speaker 5: when there's really no way for that not to be

89
00:05:13,720 --> 00:05:14,880
Speaker 5: affected by the ruling.

90
00:05:15,480 --> 00:05:18,760
Speaker 3: During Wednesday's oral arguments, it seemed like most of the

91
00:05:18,920 --> 00:05:24,120
Speaker 3: justices were open to having age checks for online porn.

92
00:05:24,560 --> 00:05:28,440
Speaker 3: Are they sort of backtracking from what has been strong

93
00:05:28,560 --> 00:05:30,520
Speaker 3: concerns about free speech?

94
00:05:31,279 --> 00:05:33,960
Speaker 5: I think it's a little premature to drawing conclusions about

95
00:05:34,040 --> 00:05:39,320
Speaker 5: where the age verification analysis will go. But in July,

96
00:05:39,680 --> 00:05:44,159
Speaker 5: the Supreme Court issued a very strong pro free speech

97
00:05:44,240 --> 00:05:49,800
Speaker 5: ruling that vindicated the First Amendment rights of social media platforms,

98
00:05:50,000 --> 00:05:55,279
Speaker 5: and this opinion is not that. And it makes me

99
00:05:55,400 --> 00:05:58,880
Speaker 5: wonder if those two opinions are fully consistent with each other,

100
00:05:59,279 --> 00:06:02,080
Speaker 5: or maybe it makes me wonder that really what they

101
00:06:02,160 --> 00:06:04,720
Speaker 5: said in July they don't really mean, and that's not

102
00:06:04,760 --> 00:06:06,400
Speaker 5: going to predict their future rulings.

103
00:06:06,960 --> 00:06:10,839
Speaker 3: The Washington Post has reported that Trump is considering an

104
00:06:10,880 --> 00:06:14,760
Speaker 3: executive order on TikTok. I guess to add to the

105
00:06:14,760 --> 00:06:17,239
Speaker 3: one hundred he's going to issue on the first day,

106
00:06:17,600 --> 00:06:20,960
Speaker 3: but is an executive order appropriate in the case of TikTok.

107
00:06:21,279 --> 00:06:25,520
Speaker 5: President Trump will have a range of options to try

108
00:06:25,560 --> 00:06:29,760
Speaker 5: to help out TikTok if he chooses, he cannot unilaterally

109
00:06:30,040 --> 00:06:33,640
Speaker 5: override what Congress said, and that now it's been upheld

110
00:06:33,680 --> 00:06:36,320
Speaker 5: by the court, so anything he does to try to

111
00:06:36,320 --> 00:06:40,800
Speaker 5: help out TikTok might be inconsistent with Congress's direction and

112
00:06:40,920 --> 00:06:44,599
Speaker 5: might also be an excessive at authority. Having said that,

113
00:06:45,000 --> 00:06:48,440
Speaker 5: I don't know who's going to care about that and

114
00:06:48,520 --> 00:06:51,600
Speaker 5: force him to comply with the law that Congress passed,

115
00:06:51,800 --> 00:06:53,880
Speaker 5: so he might get away with it.

116
00:06:53,880 --> 00:06:56,839
Speaker 3: Does it seem as if the temperature is sort of

117
00:06:57,040 --> 00:07:01,359
Speaker 3: changing on TikTok, that now you have more people who

118
00:07:01,760 --> 00:07:05,719
Speaker 3: don't approve of the ban, and even some lawmakers who

119
00:07:05,760 --> 00:07:08,960
Speaker 3: are now looking to change things up.

120
00:07:09,520 --> 00:07:13,040
Speaker 5: The ban was actually always unpopular. There were polls throughout

121
00:07:13,040 --> 00:07:16,000
Speaker 5: the time period suggesting that the majority of Americans do

122
00:07:16,080 --> 00:07:19,040
Speaker 5: not want to ban TikTok, and for reasons that are

123
00:07:19,040 --> 00:07:21,520
Speaker 5: a little less clear to me, that message is finally

124
00:07:21,600 --> 00:07:25,000
Speaker 5: sinking in with some of the politicians who were responsible

125
00:07:25,080 --> 00:07:27,600
Speaker 5: for the ban, and they're starting to question it. They

126
00:07:27,640 --> 00:07:31,560
Speaker 5: got it right, and in particular, President Biden has indicated

127
00:07:31,560 --> 00:07:35,800
Speaker 5: that he might not take any action during his remaining

128
00:07:35,960 --> 00:07:40,160
Speaker 5: hours as president and kick the matter over to President Trump. Now,

129
00:07:40,200 --> 00:07:43,200
Speaker 5: Biden doesn't have to help out TikTok at all. He

130
00:07:43,280 --> 00:07:45,840
Speaker 5: could start that enforcement on the moment the law goes

131
00:07:45,880 --> 00:07:49,320
Speaker 5: into effect. And yet he seems to be questioning whether

132
00:07:49,440 --> 00:07:51,680
Speaker 5: he should have even been in support of this bill.

133
00:07:51,880 --> 00:07:55,760
Speaker 5: So I don't really understand why the temperature has changed,

134
00:07:55,800 --> 00:07:58,880
Speaker 5: but I do agree with you that people are questioning

135
00:07:59,120 --> 00:08:02,120
Speaker 5: the legitimate to see this bill. At the same time

136
00:08:02,160 --> 00:08:03,800
Speaker 5: the Supreme Court gave it a clean bill.

137
00:08:03,920 --> 00:08:08,760
Speaker 3: Health Biden himself was on TikTok, and Newsweek reported that

138
00:08:09,000 --> 00:08:12,840
Speaker 3: nine Senators and twelve House members who voted for the

139
00:08:12,920 --> 00:08:17,000
Speaker 3: TikTok ban also had accounts, so apparently they didn't have

140
00:08:17,120 --> 00:08:21,400
Speaker 3: concerns about national security or data collection well.

141
00:08:21,160 --> 00:08:24,080
Speaker 5: And incoming President Trump also said that TikTok was an

142
00:08:24,120 --> 00:08:26,960
Speaker 5: important part of his campaign strategy, and so it really

143
00:08:27,000 --> 00:08:33,520
Speaker 5: reinforces the speech risks of banning any app that allows

144
00:08:33,559 --> 00:08:36,920
Speaker 5: people to talk to each other. Those apps enable conversations

145
00:08:36,920 --> 00:08:41,080
Speaker 5: that may not exist anywhere else, and taking those apps

146
00:08:41,160 --> 00:08:44,440
Speaker 5: out of the marketplace then distort speech in a way

147
00:08:44,440 --> 00:08:47,280
Speaker 5: that we can't necessarily predict. But That's why the First

148
00:08:47,280 --> 00:08:50,680
Speaker 5: Amendment prevents us from having to worry about that. We're

149
00:08:50,720 --> 00:08:54,280
Speaker 5: not supposed to be worried about losing our ability to

150
00:08:54,320 --> 00:08:56,840
Speaker 5: talk to each other because the first man protects it.

151
00:08:56,880 --> 00:08:59,480
Speaker 5: And that's why it's so painful to me that the

152
00:08:59,520 --> 00:09:02,480
Speaker 5: Supreme didn't vindicate those First Amendment rights.

153
00:09:02,760 --> 00:09:07,440
Speaker 3: So Eric, during the oral arguments, the attorney for TikTok

154
00:09:07,600 --> 00:09:10,480
Speaker 3: said that it was going to go dark on Sunday.

155
00:09:10,920 --> 00:09:12,320
Speaker 3: What happens if it goes dark?

156
00:09:12,920 --> 00:09:15,880
Speaker 5: I don't know what going dark means. We know that

157
00:09:16,000 --> 00:09:20,400
Speaker 5: the law requires the app stores to stop making the

158
00:09:20,520 --> 00:09:24,360
Speaker 5: tiktop app available for download. That is a form of

159
00:09:24,400 --> 00:09:27,319
Speaker 5: going dark, But that's I think not what most people

160
00:09:27,360 --> 00:09:31,160
Speaker 5: would be referring to. And it's unclear what other consequences

161
00:09:31,160 --> 00:09:34,640
Speaker 5: will happen to people who've oready installed the TikTok app

162
00:09:35,040 --> 00:09:39,200
Speaker 5: after the band goes into effect. Now, if President Biden

163
00:09:39,760 --> 00:09:43,120
Speaker 5: kicks the can over to President Trump, who then says

164
00:09:43,440 --> 00:09:47,480
Speaker 5: we're going to withhold enforcement so that we can figure

165
00:09:47,520 --> 00:09:51,280
Speaker 5: something out, it's possible that no one's actually going to

166
00:09:51,360 --> 00:09:53,960
Speaker 5: change their behavior, and so there won't be any going

167
00:09:54,040 --> 00:09:58,360
Speaker 5: dark because of these representations from the enforcement side.

168
00:09:58,760 --> 00:10:02,280
Speaker 3: But would the app store want to take the chance

169
00:10:02,960 --> 00:10:06,520
Speaker 3: knowing that they could be subjected to these massive fines.

170
00:10:07,280 --> 00:10:10,440
Speaker 5: The app stors may have defenses that have been untested,

171
00:10:10,640 --> 00:10:13,040
Speaker 5: but for the most part, the app stores are almost

172
00:10:13,080 --> 00:10:16,719
Speaker 5: certainly going to cater to the instructions of Congress. They

173
00:10:16,720 --> 00:10:19,560
Speaker 5: have very little incentive to stand up on behalf of

174
00:10:19,600 --> 00:10:22,920
Speaker 5: the individual app. They didn't show up in the litigation

175
00:10:23,200 --> 00:10:27,000
Speaker 5: to express their own concerns about their free speech rights,

176
00:10:27,040 --> 00:10:31,280
Speaker 5: and they're used to being ordered around by other governments

177
00:10:31,280 --> 00:10:34,080
Speaker 5: outside the United States about which apps they can carry,

178
00:10:34,400 --> 00:10:36,160
Speaker 5: and they don't really care as long as they can

179
00:10:36,240 --> 00:10:39,520
Speaker 5: continue to function as app stores. So the appsturs have

180
00:10:39,600 --> 00:10:43,240
Speaker 5: really shown zero spine or backbone when it comes to

181
00:10:43,400 --> 00:10:46,400
Speaker 5: standing up on behalf of their apps or their users.

182
00:10:46,640 --> 00:10:48,440
Speaker 5: They'll just do whatever the government tells them.

183
00:10:48,840 --> 00:10:51,320
Speaker 3: There are a lot of obstacles in the way of

184
00:10:51,480 --> 00:10:54,520
Speaker 3: a sale, including that Byedan's has said it doesn't want

185
00:10:54,559 --> 00:10:57,800
Speaker 3: to sell TikTok under the law. Does it have to

186
00:10:57,840 --> 00:11:00,560
Speaker 3: be a sale or can there be some other kind

187
00:11:00,600 --> 00:11:02,200
Speaker 3: of negotiated settlement.

188
00:11:02,760 --> 00:11:05,319
Speaker 5: It has to be a sale. There's nothing that President

189
00:11:05,360 --> 00:11:08,080
Speaker 5: Trump could do to brok or some intermediate deal. And

190
00:11:08,080 --> 00:11:10,280
Speaker 5: I don't think he would want to. If President Trump

191
00:11:10,280 --> 00:11:14,040
Speaker 5: gets evolved and if he's able to negotiate, he's almost

192
00:11:14,080 --> 00:11:17,680
Speaker 5: certainly going to steer the ownership of TikTok into the

193
00:11:17,720 --> 00:11:20,959
Speaker 5: hands of one of his oligark buddies, And it's a

194
00:11:21,000 --> 00:11:24,920
Speaker 5: form of basically looting the situation. That'll be a wealth

195
00:11:25,000 --> 00:11:29,000
Speaker 5: transfer from TikTok's current owners into the hands of one

196
00:11:29,040 --> 00:11:32,000
Speaker 5: of Trump's friends who is going to get a cheaper

197
00:11:32,040 --> 00:11:34,880
Speaker 5: price due to the distress sale.

198
00:11:35,080 --> 00:11:39,240
Speaker 3: And what's ironic is that the most popular apps so

199
00:11:39,440 --> 00:11:44,079
Speaker 3: far for TikTok users looking for an alternative are also

200
00:11:44,360 --> 00:11:45,200
Speaker 3: Chinese owned.

201
00:11:45,960 --> 00:11:50,439
Speaker 5: Yeah, so I call it a diaspora that people are

202
00:11:50,480 --> 00:11:53,559
Speaker 5: going to flee TikTok and spread through the Internet and

203
00:11:53,559 --> 00:11:56,840
Speaker 5: other venues. But those who are going to other Chinese

204
00:11:56,960 --> 00:12:02,240
Speaker 5: owned or affiliated apps aren't really solving their problem because

205
00:12:02,600 --> 00:12:05,920
Speaker 5: the law can also apply to those other apps. And

206
00:12:06,640 --> 00:12:09,520
Speaker 5: in fact, we have a senator, Senator Warner who said

207
00:12:09,520 --> 00:12:12,160
Speaker 5: that he was going to make sure that those other

208
00:12:12,200 --> 00:12:14,960
Speaker 5: apps were targeted. In other words, it might just be

209
00:12:15,080 --> 00:12:19,760
Speaker 5: this cascade of rolling censorship that they take out TikTok,

210
00:12:19,760 --> 00:12:21,120
Speaker 5: and then they're going to take out the next step,

211
00:12:21,280 --> 00:12:24,240
Speaker 5: and the next step after that, and there's no natural boundaries.

212
00:12:24,240 --> 00:12:28,160
Speaker 5: The Supreme Court has blessed the practice of just kicking

213
00:12:28,320 --> 00:12:31,320
Speaker 5: apps out of the United States. So all those people

214
00:12:31,400 --> 00:12:35,880
Speaker 5: who think they're being clever are not really solving their problem.

215
00:12:36,040 --> 00:12:39,200
Speaker 5: But it's a sign of how people are voting with

216
00:12:39,320 --> 00:12:43,120
Speaker 5: their Internet connections to say this is a really stupid solution.

217
00:12:43,640 --> 00:12:48,320
Speaker 3: Well, TikTok Ceo posted a video thanking Trump for his support,

218
00:12:48,800 --> 00:12:51,720
Speaker 3: So we will see what happens, and thank you Eric

219
00:12:51,840 --> 00:12:55,079
Speaker 3: as always, that's Professor Eric Goleman of the Santa Clara

220
00:12:55,200 --> 00:12:59,440
Speaker 3: University Law School. I'm June Grosso. When you're listening to Bloomberg.

221
00:13:00,120 --> 00:13:01,080
Speaker 4: Going to be a dictator? Are you?

222
00:13:01,280 --> 00:13:04,160
Speaker 6: I said no, no, No. Other than day one, we're

223
00:13:04,160 --> 00:13:07,400
Speaker 6: closing the border and we're drilling, drilling, drilling. After that,

224
00:13:07,440 --> 00:13:08,280
Speaker 6: I'm not a day night.

225
00:13:08,480 --> 00:13:11,920
Speaker 3: Donald Trump is setting the stage for a frenetic first

226
00:13:12,000 --> 00:13:16,840
Speaker 3: day in office that may appear somewhat autocratic. He's preparing

227
00:13:16,880 --> 00:13:20,840
Speaker 3: to issue more than one hundred executive orders on day one.

228
00:13:21,400 --> 00:13:24,240
Speaker 3: They range from a crackdown on the southern border and

229
00:13:24,520 --> 00:13:30,000
Speaker 3: ending birthright citizenship to implementing sweeping tariffs and restricting the

230
00:13:30,080 --> 00:13:33,439
Speaker 3: rights of transgender Americans with a stroke.

231
00:13:33,160 --> 00:13:35,720
Speaker 6: Of my pen on day one, We're going to stop

232
00:13:35,800 --> 00:13:45,000
Speaker 6: the transgender lunacy, and I will sign executive orders to

233
00:13:45,200 --> 00:13:50,760
Speaker 6: end child sexual mutilation, get transgender out of the military

234
00:13:50,800 --> 00:13:54,840
Speaker 6: and out of our elementary schools and middle schools.

235
00:13:54,400 --> 00:13:55,120
Speaker 7: In high school.

236
00:13:56,200 --> 00:14:00,240
Speaker 3: Some of the executive orders will be significant, others will

237
00:14:00,240 --> 00:14:04,439
Speaker 3: be merely symbolic, and many will be challenged in the courts.

238
00:14:05,040 --> 00:14:08,680
Speaker 3: Joining me is constitutional law expert David Super, a professor

239
00:14:08,760 --> 00:14:13,280
Speaker 3: at Georgetown Law. David explain what an executive order is

240
00:14:13,720 --> 00:14:15,199
Speaker 3: and the power it carries.

241
00:14:15,600 --> 00:14:21,640
Speaker 7: An executive order is simply a formal directive from the President,

242
00:14:21,680 --> 00:14:25,360
Speaker 7: as head of the executive Branch, to any or all

243
00:14:25,440 --> 00:14:30,280
Speaker 7: of his subordinates. It can be something that is called

244
00:14:30,320 --> 00:14:34,000
Speaker 7: for by an Act of Congress. It can be issued

245
00:14:34,240 --> 00:14:39,840
Speaker 7: under the president's constitutional authorities as commander in chief and

246
00:14:39,960 --> 00:14:42,880
Speaker 7: as head of the executive Department of government.

247
00:14:43,240 --> 00:14:47,520
Speaker 3: Are there areas or things that the president can't do

248
00:14:47,720 --> 00:14:48,840
Speaker 3: by executive order?

249
00:14:49,360 --> 00:14:49,560
Speaker 8: Yeah.

250
00:14:49,600 --> 00:14:53,080
Speaker 7: The President can't do anything that he doesn't have the

251
00:14:53,840 --> 00:14:57,560
Speaker 7: authority to do, either from the Constitution or Congress. So

252
00:14:57,680 --> 00:15:02,760
Speaker 7: he can't amend or repeal laws. He can't abridge People's

253
00:15:02,840 --> 00:15:08,080
Speaker 7: First Amendment or do process freedoms. He can't exercise powers

254
00:15:08,080 --> 00:15:08,840
Speaker 7: that are not his.

255
00:15:09,480 --> 00:15:15,640
Speaker 3: Do most executive orders require agencies to perform actions for the.

256
00:15:15,600 --> 00:15:20,560
Speaker 7: Most part, yes, because most laws delegate authority to agencies.

257
00:15:21,280 --> 00:15:25,760
Speaker 7: So an executive order is the president publicly telling one

258
00:15:25,840 --> 00:15:29,880
Speaker 7: or more agencies how it wants them to use their

259
00:15:30,520 --> 00:15:36,280
Speaker 7: delegated powers. Very few matters, not none, but very few

260
00:15:36,760 --> 00:15:39,720
Speaker 7: are delegated directly to the president.

261
00:15:40,160 --> 00:15:43,880
Speaker 3: So then when an agency is ordered by executive order

262
00:15:43,880 --> 00:15:46,720
Speaker 3: to do something, they have to go through the Administrative

263
00:15:46,760 --> 00:15:49,640
Speaker 3: Procedure Act and the rules process. So it can't be

264
00:15:49,720 --> 00:15:50,640
Speaker 3: done immediately.

265
00:15:51,480 --> 00:15:54,320
Speaker 7: No, and the agency can't do more than the law

266
00:15:54,400 --> 00:15:58,920
Speaker 7: allows it to do. So the president can direct the

267
00:15:59,000 --> 00:16:03,120
Speaker 7: agency to do six things, but if the agency only

268
00:16:03,600 --> 00:16:06,440
Speaker 7: has legal authority to do four of them, then that's

269
00:16:06,480 --> 00:16:07,880
Speaker 7: all that's ever going to happen.

270
00:16:08,360 --> 00:16:12,000
Speaker 3: So Donald Trump says that he is going to issue

271
00:16:12,760 --> 00:16:16,280
Speaker 3: one hundred executive orders on day one, and to put

272
00:16:16,280 --> 00:16:20,080
Speaker 3: that into context, as of Monday, President Biden has issued

273
00:16:20,080 --> 00:16:23,640
Speaker 3: one hundred and fifty five executive orders over four years.

274
00:16:24,080 --> 00:16:27,320
Speaker 3: Do you think Trump wants to create shock and awe

275
00:16:27,400 --> 00:16:29,000
Speaker 3: with this flood of orders?

276
00:16:29,400 --> 00:16:31,640
Speaker 7: Oh, I think that's the idea. There have been a

277
00:16:31,720 --> 00:16:36,040
Speaker 7: number of statements from the President and from members of

278
00:16:36,080 --> 00:16:39,560
Speaker 7: his team suggesting that they intend to have a shock

279
00:16:39,640 --> 00:16:40,520
Speaker 7: and law entrance.

280
00:16:41,240 --> 00:16:47,760
Speaker 3: Immigration enforcement is and always has been Trump's number one priority.

281
00:16:48,200 --> 00:16:51,280
Speaker 3: He has said that on day one he's going to

282
00:16:51,440 --> 00:16:56,040
Speaker 3: close the US southern border, reinstate his travel bands, and

283
00:16:56,120 --> 00:17:00,720
Speaker 3: suspend refugee admissions into the country. Can he do those

284
00:17:00,800 --> 00:17:02,720
Speaker 3: things by executive order?

285
00:17:03,440 --> 00:17:07,720
Speaker 7: He can do things that sound like that, And if

286
00:17:07,760 --> 00:17:13,440
Speaker 7: the goal of this is publicity, then perhaps he can

287
00:17:13,680 --> 00:17:17,680
Speaker 7: get the publicity he is seeking. But there's very extensive

288
00:17:17,840 --> 00:17:24,440
Speaker 7: laws about the ability to limit travel, about refugees ability

289
00:17:24,520 --> 00:17:28,119
Speaker 7: to seek to come to this country, and a number

290
00:17:28,119 --> 00:17:31,359
Speaker 7: of the things in that area that have been discussed

291
00:17:31,440 --> 00:17:33,680
Speaker 7: publicly are probably illegal.

292
00:17:33,840 --> 00:17:37,879
Speaker 3: The Supreme Court did uphold his Muslim travel ban, but

293
00:17:38,359 --> 00:17:42,520
Speaker 3: circumstances have changed since then. So is there any guarantee

294
00:17:42,560 --> 00:17:45,120
Speaker 3: the Supreme Court would uphold another travel ban.

295
00:17:45,840 --> 00:17:50,520
Speaker 7: There's no guarantee. That opinion was fairly deferential to the president,

296
00:17:51,000 --> 00:17:54,000
Speaker 7: but it didn't suggest that the president had a complete

297
00:17:54,040 --> 00:17:59,760
Speaker 7: blank check. So if the President justifies a travel ban

298
00:18:00,119 --> 00:18:04,520
Speaker 7: on factually sound and legally permissible grounds, it'll be upheld.

299
00:18:04,680 --> 00:18:07,520
Speaker 7: But remember this travel band that got to the Supreme

300
00:18:07,560 --> 00:18:10,080
Speaker 7: Court was not the first one or even the second

301
00:18:10,119 --> 00:18:14,320
Speaker 7: one that he issued. His first few travel bans were

302
00:18:14,400 --> 00:18:19,920
Speaker 7: so blatantly unlawful that they lost in lower courts, and

303
00:18:20,160 --> 00:18:23,400
Speaker 7: his Justice Department sensibly conclude that there was no point

304
00:18:23,440 --> 00:18:23,960
Speaker 7: in appealing.

305
00:18:24,440 --> 00:18:29,600
Speaker 3: Are courts generally reluctant to stay or to overturn an

306
00:18:29,640 --> 00:18:32,359
Speaker 3: executive order? Do they give a lot of deference to

307
00:18:32,400 --> 00:18:32,960
Speaker 3: the president?

308
00:18:33,560 --> 00:18:38,400
Speaker 7: I don't know that that's generally true. Executive orders often

309
00:18:38,560 --> 00:18:42,680
Speaker 7: don't do anything that could be challenged in court. An

310
00:18:42,720 --> 00:18:47,440
Speaker 7: executive order might, for example, say that agencies should take

311
00:18:47,440 --> 00:18:51,760
Speaker 7: the interests of veterans into account in implementing various authorities

312
00:18:51,840 --> 00:18:56,439
Speaker 7: under their control. That's not challengeable because it doesn't adversely

313
00:18:56,480 --> 00:19:00,360
Speaker 7: affect anybody. If the president tries to take a thority

314
00:19:00,480 --> 00:19:04,399
Speaker 7: that isn't his courts feel a need to intervene to

315
00:19:04,440 --> 00:19:06,280
Speaker 7: preserve the separation of powers.

316
00:19:06,640 --> 00:19:13,240
Speaker 3: Immigration advocacy groups, environmental groups, and some state ags are

317
00:19:13,320 --> 00:19:17,720
Speaker 3: sort of gearing up to challenge some of these orders

318
00:19:17,760 --> 00:19:21,280
Speaker 3: that he's promised, And another of his pledges is to

319
00:19:21,520 --> 00:19:26,520
Speaker 3: end birthright citizenship on day one. That's something that surely

320
00:19:26,640 --> 00:19:27,720
Speaker 3: will be challenged.

321
00:19:28,080 --> 00:19:31,520
Speaker 7: Well, that's an example of an executive order that has

322
00:19:31,560 --> 00:19:34,440
Speaker 7: no legal authority taking a power that isn't his. That's

323
00:19:34,480 --> 00:19:38,320
Speaker 7: resolved by Section one of the fourteenth Amendment to the Constitution.

324
00:19:38,600 --> 00:19:42,280
Speaker 7: So neither the President nor Congress can change that. We

325
00:19:42,359 --> 00:19:44,880
Speaker 7: could only change that if we amended the constitution.

326
00:19:45,680 --> 00:19:48,960
Speaker 3: Trump said, with a stroke of my pen on day one,

327
00:19:49,119 --> 00:19:53,720
Speaker 3: We're going to stop the transgender lunacy. He also said

328
00:19:53,720 --> 00:19:57,639
Speaker 3: that in his administration, the official policy of the US

329
00:19:57,840 --> 00:20:01,439
Speaker 3: government will be that there are only two genders, male

330
00:20:01,640 --> 00:20:06,560
Speaker 3: and female. What can he do to restrict transgender rights

331
00:20:06,600 --> 00:20:07,879
Speaker 3: as he wants to.

332
00:20:08,520 --> 00:20:11,080
Speaker 7: The most significant thing that he can do, and something

333
00:20:11,080 --> 00:20:15,720
Speaker 7: he's already been doing, is feeding the flames of bigotry

334
00:20:15,760 --> 00:20:19,119
Speaker 7: and hostility and hatred. I don't think there's any question

335
00:20:19,240 --> 00:20:22,879
Speaker 7: that a significant number of transgender children will be driven

336
00:20:22,920 --> 00:20:25,679
Speaker 7: into depression and some to suicide as a result of

337
00:20:25,720 --> 00:20:29,679
Speaker 7: this hateful rhetoric. That's clearly within his power. Controlling what

338
00:20:29,840 --> 00:20:33,840
Speaker 7: happens in schools they're run by state and local governments,

339
00:20:33,920 --> 00:20:35,200
Speaker 7: is not within his power.

340
00:20:35,520 --> 00:20:39,280
Speaker 3: What about preventing transgender people from being in the military.

341
00:20:39,720 --> 00:20:44,480
Speaker 7: The President has considerable authority as commander in chief to

342
00:20:45,240 --> 00:20:50,600
Speaker 7: take steps to make the military more effective. For the country.

343
00:20:51,160 --> 00:20:55,399
Speaker 7: Whether the courts would consider purging people who are serving

344
00:20:55,480 --> 00:20:59,920
Speaker 7: in the military honorably and have shown loyalty and proficiency

345
00:21:00,160 --> 00:21:00,960
Speaker 7: is another question.

346
00:21:01,359 --> 00:21:04,760
Speaker 3: He also said he's going to do something that's reminiscent

347
00:21:05,359 --> 00:21:08,040
Speaker 3: of what he attempted in his first term. He said

348
00:21:08,040 --> 00:21:11,640
Speaker 3: he's going to sign an executive order directing every federal

349
00:21:11,720 --> 00:21:17,840
Speaker 3: agency to immediately remove every single burdensome regulation. And he

350
00:21:17,880 --> 00:21:22,200
Speaker 3: said that for every regulation that a federal agency wants

351
00:21:22,240 --> 00:21:26,520
Speaker 3: to put into effect, it has to remove ten regulations.

352
00:21:27,000 --> 00:21:30,360
Speaker 3: That's up from his first term where he said they

353
00:21:30,400 --> 00:21:34,720
Speaker 3: have to eliminate two regulations for every one new regulation.

354
00:21:35,280 --> 00:21:39,320
Speaker 7: Well, it makes for good headlines, but it's pretty overtly illegal.

355
00:21:39,600 --> 00:21:43,920
Speaker 7: Each of the statutes that federal agencies implement have their

356
00:21:43,960 --> 00:21:49,200
Speaker 7: own legal criteria, and an agency should issue the regulations

357
00:21:49,200 --> 00:21:52,560
Speaker 7: the statue directs it to issue, and should not issue

358
00:21:52,680 --> 00:21:57,440
Speaker 7: regulations the statutes don't authorize. It is not a legal

359
00:21:57,760 --> 00:22:02,480
Speaker 7: or rational basis for deregulating that you needed to regulate

360
00:22:02,560 --> 00:22:06,480
Speaker 7: something else. He can't do that, and if an agency

361
00:22:06,600 --> 00:22:09,320
Speaker 7: tries to do repeals of the kind he's talking about,

362
00:22:09,520 --> 00:22:12,439
Speaker 7: those will surely be challenged and struck down in court.

363
00:22:12,880 --> 00:22:15,879
Speaker 3: So Out of the seventy seven major rules in his

364
00:22:15,920 --> 00:22:20,400
Speaker 3: first administration that were challenged, Trump won thirty one point

365
00:22:20,440 --> 00:22:23,480
Speaker 3: two percent of the time, according to an analysis by

366
00:22:23,840 --> 00:22:29,359
Speaker 3: NYU Law School's Institute for Policy Integrity. What difference, if any,

367
00:22:29,720 --> 00:22:33,040
Speaker 3: does it make that in his first term, the Chevron

368
00:22:33,119 --> 00:22:36,160
Speaker 3: Doctrine was in place, But in his second term there

369
00:22:36,200 --> 00:22:39,840
Speaker 3: is no Chevron doctrine, so that deference to agencies with

370
00:22:39,960 --> 00:22:43,120
Speaker 3: ambiguous rules is gone. Would that make any difference?

371
00:22:43,520 --> 00:22:47,239
Speaker 7: That'll mean he'll lose more. The Chevron doctrine was an

372
00:22:47,359 --> 00:22:51,040
Speaker 7: enormous help to President Trump in his first term. A

373
00:22:51,160 --> 00:22:55,600
Speaker 7: number of very questionable legal rulings were sustained on that basis.

374
00:22:55,840 --> 00:22:59,560
Speaker 7: He doesn't have that to hide behind anymore, and if

375
00:22:59,800 --> 00:23:03,320
Speaker 7: his new rules are as badly reasoned as the ones

376
00:23:03,359 --> 00:23:06,000
Speaker 7: in his first term, he'll be very lucky to get

377
00:23:06,000 --> 00:23:08,040
Speaker 7: even close to thirty one percent success.

378
00:23:08,440 --> 00:23:10,159
Speaker 3: He has talked about day one a lot in the

379
00:23:10,240 --> 00:23:14,040
Speaker 3: last few months, and he said, look, I can undo

380
00:23:14,160 --> 00:23:18,720
Speaker 3: almost everything Biden did through executive order, and on day

381
00:23:18,760 --> 00:23:22,400
Speaker 3: one much of that will be undone. A president can

382
00:23:22,520 --> 00:23:25,680
Speaker 3: revoke the executive orders of his predecessor.

383
00:23:26,000 --> 00:23:29,520
Speaker 7: The president generally can revoke the predecessor's executive orders, and

384
00:23:29,960 --> 00:23:32,639
Speaker 7: he can sign a new executive order with a list

385
00:23:32,840 --> 00:23:37,080
Speaker 7: of fire executive orders that are ascended. If he tries

386
00:23:37,200 --> 00:23:40,520
Speaker 7: that with too broad a brush, he'll probably end up

387
00:23:40,560 --> 00:23:45,720
Speaker 7: doing some things that are embarrassing, repealing recognitions of this

388
00:23:45,920 --> 00:23:52,800
Speaker 7: or that agency or state or individual for heroic or

389
00:23:52,960 --> 00:23:58,240
Speaker 7: public minded service. But he can repeal just about any

390
00:23:58,280 --> 00:24:02,639
Speaker 7: executive order he wants to, unless there is some statute

391
00:24:02,720 --> 00:24:05,440
Speaker 7: that requires that executive order to stay in place, which

392
00:24:05,480 --> 00:24:06,320
Speaker 7: there rarely is.

393
00:24:06,640 --> 00:24:10,080
Speaker 3: We assume he's going to rely on executive orders a

394
00:24:10,119 --> 00:24:13,480
Speaker 3: great deal. Was there another president who relied a lot

395
00:24:13,520 --> 00:24:14,720
Speaker 3: on executive orders?

396
00:24:15,480 --> 00:24:20,080
Speaker 7: No, there have been presidents who've issued very important executive orders.

397
00:24:20,119 --> 00:24:24,760
Speaker 7: Certainly President Reagan did, President Clinton did, and they did

398
00:24:24,880 --> 00:24:28,800
Speaker 7: change the government with those, but they were targeted at

399
00:24:28,840 --> 00:24:33,320
Speaker 7: particular things that were within their authority and particular things

400
00:24:33,320 --> 00:24:35,080
Speaker 7: that the government could actually do.

401
00:24:35,480 --> 00:24:37,720
Speaker 3: We'll see how long it takes for a lawsuit to

402
00:24:37,760 --> 00:24:43,040
Speaker 3: be filed challenging one of Trump's executive orders. Thanks so much, David.

403
00:24:43,359 --> 00:24:47,600
Speaker 3: That's Professor David Super of Georgetown Law. I'm June Grosso.

404
00:24:47,600 --> 00:24:51,120
Speaker 3: When you're listening to Bloomberg, Chexas is one of nineteen

405
00:24:51,240 --> 00:24:53,960
Speaker 3: states that have passed laws in the last two years

406
00:24:54,280 --> 00:24:58,719
Speaker 3: requiring visitors to poorn websites to verify their age, and

407
00:24:58,800 --> 00:25:02,760
Speaker 3: this week the Supreme Court grapple with the constitutionality of

408
00:25:02,800 --> 00:25:06,760
Speaker 3: the Texas law. Chief Justice John Roberts and Justice Amy

409
00:25:06,800 --> 00:25:11,560
Speaker 3: Cony Barrett expressed concerns about how easily teenagers can get

410
00:25:11,600 --> 00:25:14,520
Speaker 3: access to porn these days, with just the click of

411
00:25:14,560 --> 00:25:15,040
Speaker 3: a button.

412
00:25:15,600 --> 00:25:20,359
Speaker 6: Technological access to pornography obviously has exploded.

413
00:25:21,840 --> 00:25:29,240
Speaker 8: I mean kids can get online porn through gaming systems, tablets, phones, computers.

414
00:25:29,320 --> 00:25:31,400
Speaker 8: Let me just say that content filtering for all those

415
00:25:31,400 --> 00:25:34,720
Speaker 8: different devices, I can say from personal experience, is difficult

416
00:25:34,760 --> 00:25:38,160
Speaker 8: to keep up with. And I think that the explosion

417
00:25:38,200 --> 00:25:42,280
Speaker 8: of addiction to online porn has shown that content filtering

418
00:25:42,440 --> 00:25:43,040
Speaker 8: isn't working.

419
00:25:43,400 --> 00:25:47,520
Speaker 3: But the Free Speech Coalition, an adult entertainment industry trade group,

420
00:25:47,720 --> 00:25:51,560
Speaker 3: is challenging the law, saying it violates the privacy of

421
00:25:51,600 --> 00:25:56,880
Speaker 3: adults by requiring them to submit personal identifying information online,

422
00:25:57,240 --> 00:26:00,879
Speaker 3: making them vulnerable to hacking or tracking. Much of the

423
00:26:01,040 --> 00:26:04,320
Speaker 3: arguments centered on what type of legal standard should be

424
00:26:04,400 --> 00:26:08,320
Speaker 3: used in reviewing the law. Here's Justice Katanji Brown Jackson.

425
00:26:08,680 --> 00:26:13,080
Speaker 9: I thought the work of rational basis review and strict

426
00:26:13,119 --> 00:26:17,600
Speaker 9: scrutiny was to evaluate whether this is too burdensome. That

427
00:26:17,720 --> 00:26:21,480
Speaker 9: we say, because the adults have a certain scope of

428
00:26:21,480 --> 00:26:24,480
Speaker 9: First Amendment rights, you can only impose a burden that

429
00:26:24,600 --> 00:26:28,600
Speaker 9: is the least restrictive way of reaching your compelling interests.

430
00:26:28,760 --> 00:26:32,080
Speaker 3: Joining me is First Amendment expert Eugene Vollick, a professor

431
00:26:32,080 --> 00:26:37,040
Speaker 3: at UCLA Law School, Eugene Justice Sonia Sotomayor said, the

432
00:26:37,119 --> 00:26:39,959
Speaker 3: issue is the level of scrutiny to be applied to

433
00:26:40,000 --> 00:26:42,679
Speaker 3: the law. Is that the real issue in the case.

434
00:26:43,359 --> 00:26:46,439
Speaker 1: It is an issue, but if in some respects a

435
00:26:46,480 --> 00:26:50,359
Speaker 1: matter of legal labeling, there's a deeper issue behind. If

436
00:26:50,400 --> 00:26:53,479
Speaker 1: you just step back. We can think of two kinds

437
00:26:53,520 --> 00:26:56,840
Speaker 1: of speech. One is speech that holds within a First

438
00:26:56,840 --> 00:27:01,000
Speaker 1: Amendment exception. Could be true threats of criminal content, could

439
00:27:01,040 --> 00:27:04,000
Speaker 1: be incitement to crimes. It could be obscenity in the

440
00:27:04,040 --> 00:27:08,080
Speaker 1: sense of hardcore pornography that is illegal for everybody. That

441
00:27:08,200 --> 00:27:11,000
Speaker 1: kind of speech this was in a First to Ament exception.

442
00:27:11,160 --> 00:27:15,840
Speaker 1: It's constitutionally unprotected once you apply the right test to

443
00:27:15,920 --> 00:27:18,920
Speaker 1: determine whether it fits into one of those categories. At

444
00:27:18,920 --> 00:27:22,760
Speaker 1: that point, restrictions on that speech might be seen as

445
00:27:22,840 --> 00:27:26,080
Speaker 1: justifiable so long as there's a so called rational basis

446
00:27:26,080 --> 00:27:28,240
Speaker 1: for them, which is to say, they'll be upheld again

447
00:27:28,720 --> 00:27:32,600
Speaker 1: once the court concludes the speech is unprotected. Second category

448
00:27:32,600 --> 00:27:37,800
Speaker 1: of speeches all sorts of other speech, political advocacy, scientific speech,

449
00:27:38,000 --> 00:27:41,640
Speaker 1: discussion about personal matters that is protected. If the government

450
00:27:41,680 --> 00:27:44,800
Speaker 1: wants to restrict that based on its content, it really

451
00:27:44,840 --> 00:27:48,199
Speaker 1: does have to show there's a compelling government interest. The

452
00:27:48,280 --> 00:27:51,800
Speaker 1: law is the least restrictive way of serving that interest.

453
00:27:52,000 --> 00:27:54,560
Speaker 1: It's a very hard standard of the show. But there

454
00:27:54,680 --> 00:27:58,160
Speaker 1: is this third category that the Court has recognized over

455
00:27:58,200 --> 00:28:04,040
Speaker 1: the decades, and that is speech that is unprotected for minors,

456
00:28:04,240 --> 00:28:08,080
Speaker 1: so called harmful to minors or obsceness to minors, therefore

457
00:28:08,119 --> 00:28:11,800
Speaker 1: unacceptable to be distributed to minors, but at the same

458
00:28:11,840 --> 00:28:15,800
Speaker 1: time is constitutionally protected for adults. A lot of pornography

459
00:28:15,880 --> 00:28:20,439
Speaker 1: is that way. It's basically protected for adults, but if

460
00:28:20,480 --> 00:28:24,000
Speaker 1: you're trying to distribute it to minors, it is constitutionally unprotected.

461
00:28:24,000 --> 00:28:27,640
Speaker 1: The question is what happens when there are laws that

462
00:28:27,960 --> 00:28:32,560
Speaker 1: limit speech within this kind of weird intermediate category, and

463
00:28:32,760 --> 00:28:36,800
Speaker 1: at the same time those laws pretty much invariably also

464
00:28:37,040 --> 00:28:40,520
Speaker 1: burden speech that is aimed at adults or that will

465
00:28:40,520 --> 00:28:43,480
Speaker 1: be received by adults. So the question is, how do

466
00:28:43,520 --> 00:28:48,040
Speaker 1: you reconcile the permissibility of trying to shield miners with

467
00:28:48,520 --> 00:28:51,280
Speaker 1: the fact that any sit restriction will impost unburdens on

468
00:28:51,320 --> 00:28:55,080
Speaker 1: adults and h screening will in particular interfere in some

469
00:28:55,160 --> 00:28:58,600
Speaker 1: measure with adults privacy because it might require them to

470
00:28:58,680 --> 00:29:02,320
Speaker 1: identify themselves the way. Those are the questions that the

471
00:29:02,320 --> 00:29:03,800
Speaker 1: Court was really dealing with.

472
00:29:04,560 --> 00:29:08,440
Speaker 3: The Fifth Circuit upheld the Texas law by relying on

473
00:29:08,520 --> 00:29:13,040
Speaker 3: a nineteen sixties case about a New York bookseller verifying

474
00:29:13,080 --> 00:29:17,880
Speaker 3: the age of customers before selling adult material. Was that

475
00:29:18,080 --> 00:29:20,520
Speaker 3: the case that they should have been relying on.

476
00:29:21,040 --> 00:29:24,680
Speaker 1: So the problem is that the Court has two presidents

477
00:29:24,680 --> 00:29:27,320
Speaker 1: that are pretty close to on point and the point

478
00:29:27,360 --> 00:29:31,920
Speaker 1: in pretty different directions. So in nineteen sixty eight, the

479
00:29:31,960 --> 00:29:35,320
Speaker 1: Supreme Court upheld, in a case called Ginenberg versus New York,

480
00:29:35,680 --> 00:29:39,120
Speaker 1: upheld a law that basically said, it's the illegal to

481
00:29:39,280 --> 00:29:43,240
Speaker 1: sell certain pornographic materials that are protected for adults. It's

482
00:29:43,240 --> 00:29:46,880
Speaker 1: illegal to sell them to minors, and illegal to do

483
00:29:46,960 --> 00:29:48,880
Speaker 1: that if you know the person owns as a minor

484
00:29:49,120 --> 00:29:52,120
Speaker 1: or reasonably should know the person as a minor. And

485
00:29:52,600 --> 00:29:55,360
Speaker 1: one way of determining the law said is whether the

486
00:29:55,440 --> 00:29:57,720
Speaker 1: one as a minor is by parting the person by

487
00:29:57,720 --> 00:29:59,760
Speaker 1: asking to see an it. And on the other hand,

488
00:29:59,800 --> 00:30:02,560
Speaker 1: if somebody comes in and they looked kind of borderline

489
00:30:02,560 --> 00:30:04,760
Speaker 1: and you don't card them, well, then you could be

490
00:30:04,760 --> 00:30:07,760
Speaker 1: criminally punished because you reasonably should have known that the

491
00:30:07,800 --> 00:30:11,080
Speaker 1: person was a miner's. But then, in Ashcrap the ACLU Too,

492
00:30:11,520 --> 00:30:14,600
Speaker 1: a two thousand and four case, the Supreme Court struck

493
00:30:14,760 --> 00:30:18,800
Speaker 1: down a law that aimed at shielding miners on the

494
00:30:18,840 --> 00:30:22,360
Speaker 1: Internet from this kind of harmful to minors of seen

495
00:30:22,440 --> 00:30:25,760
Speaker 1: as to minors of material. And it said, well, on

496
00:30:25,800 --> 00:30:28,680
Speaker 1: the Internet, there are other alternatives that you could use

497
00:30:28,720 --> 00:30:32,720
Speaker 1: that avoid the burden on adults. For example, filtering, so

498
00:30:33,040 --> 00:30:37,120
Speaker 1: having stopped or running on the computer that filters out

499
00:30:37,240 --> 00:30:41,200
Speaker 1: certain pronographic websites in the discretion of the computer's owner,

500
00:30:41,200 --> 00:30:44,640
Speaker 1: who presumably would be the parent. So those presidents points

501
00:30:44,720 --> 00:30:48,360
Speaker 1: in opposite directions. Now, in some sense, and probably in

502
00:30:48,360 --> 00:30:52,400
Speaker 1: a substantial sense, ASHCRAPCLU too seems more on points because

503
00:30:52,400 --> 00:30:55,840
Speaker 1: it is actually factually very similar. It also involved internet.

504
00:30:56,360 --> 00:30:57,280
Speaker 7: On the other hand, the.

505
00:30:57,280 --> 00:31:00,400
Speaker 1: Court there was really quite tentative, and it said, well,

506
00:31:00,760 --> 00:31:05,240
Speaker 1: a lot depends on fast changing technology. Justice Briar had

507
00:31:05,280 --> 00:31:08,840
Speaker 1: an sensing opinion where he said, look, filtering isn't really

508
00:31:08,920 --> 00:31:09,800
Speaker 1: that effective.

509
00:31:10,240 --> 00:31:13,400
Speaker 3: Filtering didn't seem to get such good reviews by the

510
00:31:13,640 --> 00:31:15,480
Speaker 3: justices at the oral arguments.

511
00:31:15,720 --> 00:31:19,640
Speaker 1: A lot of justices were pretty skeptical about filtering, like

512
00:31:19,720 --> 00:31:22,920
Speaker 1: after twenty extra years of experience and twenty years extra

513
00:31:23,000 --> 00:31:27,120
Speaker 1: years of technological development. Their view was, you know, filtering

514
00:31:27,360 --> 00:31:30,200
Speaker 1: when every child has a smartphone and access friends who

515
00:31:30,280 --> 00:31:32,680
Speaker 1: have smartphones and such, just isn't going to do much.

516
00:31:32,960 --> 00:31:36,920
Speaker 1: So that's why some of the justices at least seemed

517
00:31:36,920 --> 00:31:40,680
Speaker 1: a lot more open stuffline Gibsburg and suggesting that, look,

518
00:31:40,760 --> 00:31:44,760
Speaker 1: this is just the online analog of parting people as

519
00:31:44,880 --> 00:31:46,480
Speaker 1: was used with porn stores.

520
00:31:46,960 --> 00:31:51,440
Speaker 3: What standard of review were most of the justices leaning toward?

521
00:31:52,000 --> 00:31:55,000
Speaker 1: I think quite a few of the justices were open

522
00:31:55,080 --> 00:31:58,200
Speaker 1: to strict scrutiny, in part because Ashcart the ACLU too

523
00:31:58,280 --> 00:32:02,480
Speaker 1: did apply that. And then there are other cases not

524
00:32:02,640 --> 00:32:05,760
Speaker 1: quite as square of that point, but dealing with technologically

525
00:32:05,800 --> 00:32:10,280
Speaker 1: distributed pornography and electronically distributed pornography, which also applied strict scrupeny.

526
00:32:10,440 --> 00:32:11,520
Speaker 7: The real question is.

527
00:32:11,520 --> 00:32:14,960
Speaker 1: What does that end up meaning, Because even the challenger said, well,

528
00:32:15,280 --> 00:32:19,080
Speaker 1: in this situation, some laws, some regulations might pass strict

529
00:32:19,080 --> 00:32:22,200
Speaker 1: screw It's just that the particular Texas law doesn't, partly

530
00:32:22,240 --> 00:32:24,920
Speaker 1: for technical reasons having to do the law, and partly

531
00:32:25,000 --> 00:32:28,880
Speaker 1: because filtering is the less restrictive offer of one thing.

532
00:32:28,920 --> 00:32:33,360
Speaker 1: For example, that the challenger said is filtering is actually

533
00:32:33,400 --> 00:32:36,840
Speaker 1: in some respects more effective because filtering can deal with

534
00:32:37,000 --> 00:32:39,720
Speaker 1: foreign port site, whereas the Texas law would have no

535
00:32:39,760 --> 00:32:43,360
Speaker 1: effect on foreign porn sites if the foreign company has

536
00:32:43,400 --> 00:32:46,440
Speaker 1: no assets in Texas and omplaes in Texas. So the

537
00:32:46,560 --> 00:32:50,040
Speaker 1: challengers say this particular law would be struck down. I

538
00:32:50,080 --> 00:32:53,160
Speaker 1: think majority of the court would say at least certain

539
00:32:53,240 --> 00:32:56,880
Speaker 1: laws should be upheld. Majority of the court also seem

540
00:32:56,960 --> 00:33:00,680
Speaker 1: to be opened to some kind of online age verification.

541
00:33:00,880 --> 00:33:04,120
Speaker 1: So I think their view was states probably have the

542
00:33:04,200 --> 00:33:08,480
Speaker 1: authority to require some kinds of age verification as a

543
00:33:08,600 --> 00:33:13,520
Speaker 1: backstop to parent level filtering and device level filtering. That

544
00:33:13,840 --> 00:33:16,280
Speaker 1: they could try to wear belt in suspenders in this

545
00:33:16,400 --> 00:33:20,200
Speaker 1: kind of situation in order to provide more effectiveness of

546
00:33:20,520 --> 00:33:24,840
Speaker 1: shielding biners well as maybe not this particular law. Maybe

547
00:33:25,040 --> 00:33:28,200
Speaker 1: a law would have to provide more privately protective age

548
00:33:28,280 --> 00:33:33,640
Speaker 1: verification options. For example. There's also sounded like some sympathy

549
00:33:33,680 --> 00:33:36,160
Speaker 1: among some justices to kind of punt a little bit,

550
00:33:36,280 --> 00:33:39,240
Speaker 1: to say, the right standard district scrutiny, and we're going

551
00:33:39,240 --> 00:33:41,400
Speaker 1: to send it back to the Fifth Circuit, to the

552
00:33:41,440 --> 00:33:44,240
Speaker 1: Federal appellate Court. We're going to uphel the law to

553
00:33:44,480 --> 00:33:48,360
Speaker 1: reconsider the issue and to see whether the district court

554
00:33:48,480 --> 00:33:51,480
Speaker 1: was right in saying that, well, the law failed strict

555
00:33:51,520 --> 00:33:54,840
Speaker 1: scruit me. Or maybe this circus might say no, the

556
00:33:54,920 --> 00:33:58,360
Speaker 1: law actually passes strict scrutiny, or do something in between.

557
00:33:58,560 --> 00:34:01,880
Speaker 1: So that would only require the courts to choose the

558
00:34:02,040 --> 00:34:05,960
Speaker 1: strict scrutiny approach versus the rational basis approach and then

559
00:34:06,520 --> 00:34:10,840
Speaker 1: leave application of the standards to lower courts. Justices sometimes

560
00:34:10,920 --> 00:34:13,279
Speaker 1: like to do that, especially when the case looks really

561
00:34:13,280 --> 00:34:15,959
Speaker 1: complicated and really factly them as well.

562
00:34:16,239 --> 00:34:18,840
Speaker 3: So you think that it's most likely that they're going

563
00:34:18,920 --> 00:34:21,120
Speaker 3: to remand this to the Fifth Circuit.

564
00:34:21,680 --> 00:34:24,440
Speaker 1: Oh, I never make predictions really about the future, and

565
00:34:24,600 --> 00:34:28,520
Speaker 1: especially about the future on the court. Sometimes I make predictions,

566
00:34:28,520 --> 00:34:32,240
Speaker 1: but here the argument I don't think gave a clear

567
00:34:32,360 --> 00:34:36,480
Speaker 1: answer as a bad question. Some justices were open to that.

568
00:34:37,560 --> 00:34:39,760
Speaker 1: You know, if I had to bet, I would probably

569
00:34:39,840 --> 00:34:43,800
Speaker 1: say that they would say strict scrutiny applies. But whether

570
00:34:43,800 --> 00:34:46,960
Speaker 1: they would just say that and leave it entirely to

571
00:34:47,040 --> 00:34:49,640
Speaker 1: the Circuit of Relfe more guidance to the Fifth Circuit,

572
00:34:50,000 --> 00:34:51,240
Speaker 1: that is a harder question.

573
00:34:51,600 --> 00:34:56,080
Speaker 3: Texas is one of nineteen states that have these age

574
00:34:56,200 --> 00:35:00,399
Speaker 3: verification laws. So how would this apply to the other

575
00:35:00,480 --> 00:35:02,640
Speaker 3: states or would it be fact based?

576
00:35:03,920 --> 00:35:06,359
Speaker 1: Well, it would be both. If the court says, well,

577
00:35:06,640 --> 00:35:10,880
Speaker 1: the right standard is even if you're aiming at shielding children,

578
00:35:11,280 --> 00:35:13,360
Speaker 1: you've got to show that this is the means that

579
00:35:13,480 --> 00:35:17,240
Speaker 1: is least restrictive of adult access. That strict scrutiny standard

580
00:35:17,239 --> 00:35:19,600
Speaker 1: would apply to all stains. On the other end of

581
00:35:19,640 --> 00:35:22,920
Speaker 1: the court says nope, once you're shielding children at least

582
00:35:23,040 --> 00:35:27,400
Speaker 1: unless the burden and adults is extraordinarily high, well, then

583
00:35:27,480 --> 00:35:29,120
Speaker 1: in that case they're going to hold it that too

584
00:35:29,120 --> 00:35:31,319
Speaker 1: would apply to other sticks. On the other hand, are

585
00:35:31,360 --> 00:35:35,680
Speaker 1: particular features of this particular law. So for example, this law,

586
00:35:36,320 --> 00:35:40,080
Speaker 1: the state says, well, we are protecting privacy and diminishing

587
00:35:40,520 --> 00:35:44,800
Speaker 1: the chilling effects on adults by essentially for visiting psyche

588
00:35:44,840 --> 00:35:49,440
Speaker 1: the douage verification from retaining the data. What the challengers say,

589
00:35:49,560 --> 00:35:53,080
Speaker 1: Nothing in the law says that you can't give away

590
00:35:53,120 --> 00:35:55,520
Speaker 1: the data or sell the data. So long as you

591
00:35:55,520 --> 00:35:58,359
Speaker 1: don't retain that you can sell it to someone else. Well,

592
00:35:59,000 --> 00:36:01,640
Speaker 1: that's a feature that I don't know how many of

593
00:36:01,680 --> 00:36:03,640
Speaker 1: the others states have, but I imagine some of them

594
00:36:03,719 --> 00:36:06,640
Speaker 1: don't have this feature. So the court focuses on that.

595
00:36:06,760 --> 00:36:10,560
Speaker 1: It says, well, that makes this law constitutional because either

596
00:36:10,600 --> 00:36:12,879
Speaker 1: sales strips food new or because it's a too grave

597
00:36:12,920 --> 00:36:16,319
Speaker 1: a burden on adult access. Well, that might have very

598
00:36:16,320 --> 00:36:19,040
Speaker 1: little event on other state laws that don't have this

599
00:36:19,160 --> 00:36:20,160
Speaker 1: peculiar feature.

600
00:36:20,440 --> 00:36:24,480
Speaker 3: Thanks so much, Eugene Best, Professor Eugene Volleck of UCLA

601
00:36:24,560 --> 00:36:27,000
Speaker 3: Law School. And that's it for this edition of The

602
00:36:27,040 --> 00:36:30,000
Speaker 3: Bloomberg Law Show. Remember you can always get the latest

603
00:36:30,040 --> 00:36:33,160
Speaker 3: legal news on our Bloomberg Law Podcast. You can find

604
00:36:33,200 --> 00:36:37,759
Speaker 3: them on Apple Podcasts, Spotify, and at www dot Bloomberg

605
00:36:37,800 --> 00:36:41,600
Speaker 3: dot com, slash podcast Slash Law, And remember to tune

606
00:36:41,600 --> 00:36:44,840
Speaker 3: into The Bloomberg Law Show every weeknight at ten pm

607
00:36:44,920 --> 00:36:48,480
Speaker 3: Wall Street Time. I'm June Grosso, and you're listening to

608
00:36:48,520 --> 00:36:49,040
Speaker 3: Bloomberg