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Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.

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Speaker 2: Two and a half years of sending somebody unwanted emails

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Speaker 2: when that person has consistently tried to block them and

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Speaker 2: tried to stop them, some of those emails being pretty violent,

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Speaker 2: die don't need you f off permanently. Others of those

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Speaker 2: emails suggesting pretty strongly that he is watching the person.

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Speaker 2: Only a couple of physical sightings. It was that you

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Speaker 2: and the white cheap So I want to take it

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Speaker 2: as a given that this can be objectively terrifying.

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Speaker 1: Justics Elena Kagan described the online threats made to a

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Speaker 1: Colorado musician for years, threats that made her so fearful that,

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Speaker 1: after trying to block them and getting a protective order,

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Speaker 1: she canceled planned performances. Billy Kounterman was convicted of stalking

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Speaker 1: and sentenced to four and a half years in prison.

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Speaker 1: The Supreme Court was considering Counterman's appeal and his argument

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Speaker 1: that his speech should have been protected by the First

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Speaker 1: Amendment because it wasn't what's known as true threats. Many

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Speaker 1: of the justices indicated that the speaker's state of mind

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Speaker 1: was important, and whether the speaker intended to cause fear.

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Speaker 1: Here's Justice Sonya Sotomayor.

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Speaker 3: But here the court and the prosecutor argued that the

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Speaker 3: intent was irrelevant, that he couldn't present any evidence about

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Speaker 3: his intent. Correct, that is exactly what about his mental

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Speaker 3: state about what he thought? They precluded him completely from

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Speaker 3: doing that.

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Speaker 1: But several justices like Brett Kavanaugh expressed concerns about the

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Speaker 1: implications for cases involving stalking, domestic violence, school threats, and

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Speaker 1: the like if the court were to require an approach

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Speaker 1: based on the speaker's intent, a.

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Speaker 4: Defense like the one that would be present with your

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Speaker 4: men's ree get too easy for someone to say, I

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Speaker 4: was just joking, I was just kidding. And therefore threats

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Speaker 4: that would be really quite dangerous in terms of leading

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Speaker 4: to the next step of actually carrying through with the

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Speaker 4: threat will not be addressed.

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Speaker 1: Joining me is mc snaila, a partner with the Complex

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Speaker 1: Appellate Litigation Group MC explain what's meant by a true threat.

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Speaker 5: So, if it's determined to be a true threat, then

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Speaker 5: the whole question of what the constitutional for which is

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Speaker 5: where the prosecution sort of goes away saying, Okay, if

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Speaker 5: it's a true threat, then we're not concerned about first

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Speaker 5: A mement implications because we don't see societal value and

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Speaker 5: protecting in that kind of speech, because we're more concerned

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Speaker 5: in that context about individuals fear from violence. You know

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Speaker 5: that that's speech and genders. So because of that value judgment,

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Speaker 5: if it's a true threat, then we're outside of this

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Speaker 5: whole question for cementa production.

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Speaker 1: And what was the core issue in this case?

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Speaker 5: In this case, the question is what kind of intent

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Speaker 5: is required? As a constitutional matter? Is some kind of

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Speaker 5: specific intent required to convict someone of stocking or crimes

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Speaker 5: involving threats? And so if it is a true threat

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Speaker 5: and we're outside that, you're not going to have any

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Speaker 5: kind of requirement because the First Amendment doesn't put on

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Speaker 5: another layer on top of the criminal statues or even

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Speaker 5: the civil statutes. So that's the question really a narrow

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Speaker 5: intent question, but it has major ramifications, as the State

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Speaker 5: of Colorado and the Slister General pointed out at arguments

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Speaker 5: of what kinds of crimes will would be able to

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Speaker 5: charge and what kind of crimes will go unredressed if

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Speaker 5: a specific intent is required.

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Speaker 1: So in Colorado they look at whether the victim would

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Speaker 1: reasonably experience the fear of physical violence because of the

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Speaker 1: nature of the threats. So in Colorado they're taking it

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Speaker 1: from the victim's point of view, and the defendant here says,

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Speaker 1: you should take it from the defendant's point of view.

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Speaker 1: What the defendants intent is, Well, it's kind.

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Speaker 5: Of both counterman and council says, Okay, that's fine if

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Speaker 5: you have this objective reasonable recipient of the thread test

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Speaker 5: in the law, but you need more than that. You

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Speaker 5: also need to look at what was the intent of

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Speaker 5: the speaker. Did the speaker know in making her comments

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Speaker 5: that the reasonable person receiving them would interpret them as

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Speaker 5: being threatening or fear physical violence as a result of that,

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Speaker 5: And so they're really arguing kind of both of those requires.

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Speaker 1: So in this case, it's so over the top. She

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Speaker 1: got a temporary restraining order, she stopped going outside. I mean,

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Speaker 1: I don't understand how this could be considered not a

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Speaker 1: true threat.

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Speaker 5: Yeah, I mean, that's certainly what we argued in our

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Speaker 5: Meekas brief, And what we pointed out was the importance

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Speaker 5: of the constellation of behavior that stocking statues in particular

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Speaker 5: usually require two or three threats or overt acts. It's

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Speaker 5: the pattern itself that gives rise to the stocking charge

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Speaker 5: or convictions. And here there were thousands of emails over

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Speaker 5: many years and direct messages on Facebook to her, and

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Speaker 5: many of those seemed to indicate that he might physically

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Speaker 5: be tracking her also and had some threats within some

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Speaker 5: of the discrete messages like die and things like that,

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Speaker 5: which JEEF Justice Roberts pointed out it argument. But in

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Speaker 5: his questions that argument, he took each of those statements

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Speaker 5: that had particularly scary language in them and said, well,

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Speaker 5: would someone interpret this as a threat. Couldn't it be

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Speaker 5: interpreted in some other way? Don't we need more context?

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Speaker 5: And the context that we argued, and that is really

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Speaker 5: part of stocking and domestic violence is the entire context

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Speaker 5: of that relationship and prior threats and prior behaviors. So,

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Speaker 5: in other words, looking at one discrete direct message wouldn't

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Speaker 5: be sufficient, because you'd have to look at the thousands

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Speaker 5: of emails that happened despite her blocking this person on

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Speaker 5: Facebook six times at least, thereby indicating hey, you know,

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Speaker 5: don't reach out to me, and then the language in

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Speaker 5: them escalates and indicates that there might be some physical

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Speaker 5: stocking conduct going on with it. So when you look

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Speaker 5: at it, particularly in the context of the whole constellation

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Speaker 5: of threats and behaviors and the doggedness and determination that

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Speaker 5: this particular person seemed to have in communicating with her,

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Speaker 5: and some of the things that the Cloister General as

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Speaker 5: a prosecutor themselves in these kinds of cases at the

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Speaker 5: federal level and Colorado were pointing out was yeah, you know,

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Speaker 5: we look at this whole constellation.

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Speaker 1: What would we lose?

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Speaker 5: That's what the justicees We're asking if we adopt each

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Speaker 5: of your standards, what do we lose? What's the harm?

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Speaker 5: And both the SG and Colorado said, well, you would

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Speaker 5: lose prosecutions or even charging the decisions by us, because

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Speaker 5: we charge only when we think we're going to get

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Speaker 5: a conviction, because otherwise we're very concerned that the victim

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Speaker 5: of these of stocking will feel that the law cannot

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Speaker 5: protect her, and so we only charge in the most

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Speaker 5: egregious situations when we think we're very sure we can

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Speaker 5: get a conviction. And if you layer on some kind

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Speaker 5: of specifican tounch requirement, there are a lot of what

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Speaker 5: the SU called sort of you know, delusional or dbs

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Speaker 5: stockers who go just close to the line to something

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Speaker 5: that's actually threatening physical violence or like counterman. They claim, oh,

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Speaker 5: you know, we thought we were okay, you know, we

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Speaker 5: didn't know. We didn't know that they didn't want to

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Speaker 5: hear from us, even though to someone who was of

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Speaker 5: reasonable mind would certainly have concluded that this person did

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Speaker 5: not want to hear from you.

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Speaker 1: It's just so surprising to me that they use this

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Speaker 1: case to try to get this issue out there.

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Speaker 5: Yeah, I agree with you do, and that's what we

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Speaker 5: were kind of scratching our heads about too, because there

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Speaker 5: was discussion about that, and certainly to me it was

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Speaker 5: a really red flag. In the acl use brief, they

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Speaker 5: drop a footnote saying nothing we say here would impact

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Speaker 5: stocking convictions for conduct, and just the scurse that was

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Speaker 5: trying to choose that to saying, oh, well, charges for

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Speaker 5: stocking conduct wouldn't be impacted by whatever standard we put here.

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Speaker 5: But that presupposes that somehow stokers just limit themselves to

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Speaker 5: one behavior. You know, most of them. There's a gradation

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Speaker 5: from cyber stocking like this gentleman, to physical stocking of

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Speaker 5: your house or home, to a whole wide variety of

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Speaker 5: things in between. And it's not like they just select

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Speaker 5: one method. So that's a little little bit of a dichotomy.

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Speaker 5: I think that doesn't actually happen in real life. But

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Speaker 5: I think that also this balancing and these challenges on

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Speaker 5: each side. I mean, Essice Tavanaugh and Justice Tagan seemed

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Speaker 5: to be very sympathetic to the to Colorado's and the

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Speaker 5: SGUs learned about this and seem to consider, well, this

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Speaker 5: seems like true thrust to us, dude.

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Speaker 1: Most of the justices seem to be leaning toward the

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Speaker 1: notion that the speaker's intent is important. Justice Sodo Mayors

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Speaker 1: said that this Colorado man convicted of stalking wasn't given

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Speaker 1: the opportunity to explain the intention behind the speech.

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Speaker 5: Yeah, that was an interesting part of the argument, which

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Speaker 5: was the difference between being allowed to testify and explain

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Speaker 5: whatever you want to explain in a case like this

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Speaker 5: and having that be an element or a requirement that

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Speaker 5: the prosecution proved that you specifically intended something. In other words, sure,

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Speaker 5: you can go up and say that if you like,

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Speaker 5: but as a First Amendment matter, you know, it's not

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Speaker 5: required for the prescution to prove that kind of intent

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Speaker 5: beyond a reasonable doubt. That discussion came up because in

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Speaker 5: this particular case, as a result of the conclusion that

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Speaker 5: there was no First Amendment requirement for this specific intent.

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Speaker 5: According this case ended up not allowing Tuntermen to testify

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Speaker 5: about what he meant or didn't mean in this circumstance.

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Speaker 5: Perhaps there might have been another reason they didn't do that,

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Speaker 5: which is that he had two prior convictions for stocking

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Speaker 5: other women, one of which had ended up in violence.

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Speaker 5: So perhaps they wouldn't want that to come out.

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Speaker 1: So does it seem as if the justices are going

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Speaker 1: to end up requiring some kind of proof of intent

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Speaker 1: in these cases?

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Speaker 5: There was one possible somewhat middle ground, which was a

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Speaker 5: ground that we urged. If the court is going to

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Speaker 5: require some kind of intent as a First Amendment matter,

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Speaker 5: that at the most it should require a recklessness standard,

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Speaker 5: a recklessness standard rather than specific intent with regard to

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Speaker 5: knowledge as to whether what they were doing would cause

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Speaker 5: a reasonable person to bear violence. So that's an alternate

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Speaker 5: standard also that the SG urged, and so that got

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Speaker 5: a lot of airtime at argument in terms of would

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Speaker 5: this be something that you might be a middle ground

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Speaker 5: for The justices said in Maor, Gorsich and Alito, who

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Speaker 5: seemed maybe somewhat skeptical of not having any intech requirement

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Speaker 5: at all, and then those like Higgan and Kabnaugh who

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Speaker 5: were sympathetic to the question of would you be impeding

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Speaker 5: prosecutions if you required some kind of specificond time.

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Speaker 1: It's an important case. Thanks so much, EMC. That's mc

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Speaker 1: sun Gaila of the Complex Appellate Litigation Group. The Senate

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Speaker 1: Judiciary Committee advanced seven Biden judicial nominees with bipartisan support,

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Speaker 1: while skipping more controversial votes on others. As Democratic Senator

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Speaker 1: Dianne Feinstein remains out for health reasons, joining me is

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Speaker 1: judiciary expert Carl Tobias, a professor at the University of

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Speaker 1: Richmond Law School. Senator Dianne Feinstein has been home in

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Speaker 1: California for nearly two months after about with shingles. How

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Speaker 1: is that affecting the president's judicial picks.

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Speaker 6: Well, there's a lot of talk by different outlets in

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Speaker 6: the press that this is holding up his nominees and

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Speaker 6: it is delaying somewhat. But there was a hopeful sign,

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Speaker 6: very positive sign today in the Judiciary Committee where they

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Speaker 6: held votes on people who had bipartisan support. So if

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Speaker 6: any of the district nominees had the vote of any

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Speaker 6: Republican member could move forward, and seven of them did today,

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Speaker 6: and some of them had quite strong votes, like fourteen

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Speaker 6: seven or twelve nine, thirteen eight, fourteen eight, so that

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Speaker 6: is helpful. There were two or three who did not

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Speaker 6: have bipartisan support and so they were held over and

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Speaker 6: didn't have votes. But even those people could go forward

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Speaker 6: with a discharge petition, which means you need a majority

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Speaker 6: vote on the floor. And so I thought this was

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Speaker 6: a good sign that people, especially Lindse Graham, who's the

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Speaker 6: ranking member, the highest ranking Republican on the committee, showed

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Speaker 6: he was willing to work together and he voted for

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Speaker 6: all seven of those and some of his colleagues did

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Speaker 6: as well, and so that means that they're not being

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Speaker 6: held up. Now the question is will Senator Schumer schedule

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Speaker 6: them as majority leader on the floor for votes and

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Speaker 6: they won't take much time. They only need two hours

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Speaker 6: of debate after cloture. So now we have twenty district

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Speaker 6: nominees on the floor who could be confirmed, and we

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Speaker 6: have still five appellate nominees on the floor who still

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Speaker 6: need confirmation votes and debates, and the pellet ones are

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Speaker 6: more difficult because you need thirty hours of debate time

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Speaker 6: after cloture. Some of them are considered controversial by GOP members.

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Speaker 6: So I'm hopeful that this makes it much easier to

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Speaker 6: positive than some of the news reports that things are

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Speaker 6: nominees approved.

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Speaker 1: So then, why did the Republicans make such a show

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Speaker 1: of not agreeing to put a Democratic senator in Dianne

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Speaker 1: Feinstein's place temporarily.

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Speaker 6: That's a really good question, and I think it just

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Speaker 6: reflects the terrible partisanship and politicization that infects this process.

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Speaker 6: All kinds of reasons were given, but Senator McConn all

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Speaker 6: sort of personified that everybody looks to him on the

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Speaker 6: GOP side and then follows whatever he does as leader,

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Speaker 6: and he basically said, we're not going to empower Democrats

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Speaker 6: to confirm the small a fraction or some other term

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Speaker 6: like that of nominees who are radical activists or incompetent,

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Speaker 6: and so that's the position that most of the other

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Speaker 6: GOP members took. And today what happened, I think refused

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Speaker 6: that to some extent. But that's the problem. They wouldn't

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Speaker 6: extend the courtesy to Senator Feinstein, who's a long serving

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Speaker 6: member and longtime colleague and very collegial and people genuinely

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Speaker 6: like her. And that's what a number of the GFP

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Speaker 6: members said. But it seemed like a very easy solution.

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Speaker 6: The proposal was Ben Cardon, who had served effectively on

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Speaker 6: the committee before from Maryland, is quite moderate Democrats. What

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Speaker 6: happened today is a good sign that there'll be cooperation

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Speaker 6: for most of the nominees. Then moving them on the

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Speaker 6: floor is critical, and I think that won't happen soon.

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Speaker 6: Starting maybe next week.

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Speaker 1: President Biden tends to nominate Irma Carrillo Ramirez as the

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Speaker 1: first Hispanic woman to serve on the Fifth Circuit Court

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Speaker 1: of Appeals in Texas, and that is an appointment that

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Speaker 1: got the support of both Republican Home state senators. So

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Speaker 1: tell us how that worked out well.

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Speaker 6: Senators Corner and Cruz deserve some credit here, but they

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Speaker 6: supported her. In twenty sixteen, when she was nominated by

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Speaker 6: President Obama for the Northern District of Texas District Bench.

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Speaker 6: And she had been served as magistrate judge now for

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Speaker 6: twenty years and had been an assistant US attorney for

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Speaker 6: five or six years before that and in private practice,

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Speaker 6: so she's very experienced, very well qualified, but the GOP

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Speaker 6: majority refused to schedule her confirmation vote. I think she

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Speaker 6: came out of committee very strongly in twenty sixteen, and

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Speaker 6: the evaluation committee that Texas has had said in twenty

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Speaker 6: six theme that she was excellent, and the Senator supported

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Speaker 6: her then. So I think they're supporting her now for

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Speaker 6: the fifth Circuit, and that's good to have that seat filled.

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Speaker 6: That should proceed very well. And the same day there

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Speaker 6: was a nomination by President Biden of Anna di Alba,

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Speaker 6: who's been on the Eastern District of California for ten

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Speaker 6: months and is highly respected and was smoothly confirmed. So

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Speaker 6: optimistic that she will move through the process again and

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Speaker 6: be on the Nice Circuit.

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Speaker 1: Let's turn to Justice Clarence Thomas, and I want to

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Speaker 1: ask first your opinion about the first report was about

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Speaker 1: these lavish trips that he took with a Republican mega donor.

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Speaker 1: But now there's also reporting of a property deal, So

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Speaker 1: money changed hands with that same Republican mega donor and

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Speaker 1: it wasn't reported. Is this a violation of the law.

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Speaker 6: Well, I think it is a technical violation because us

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Speaker 6: all government employees are subject to ethics requirements in terms

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Speaker 6: of reporting, and so I think it is clear that

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Speaker 6: those should have been reported by the Justice. But twenty

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Speaker 6: eight Usc. Fifty five, which speaks to conflicts of interest

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Speaker 6: and says if there's an appearance that's sufficient, does not

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Speaker 6: bind the Justices. It's the statute that binds all the

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Speaker 6: other federal judges, district judges, appellate judges, and magistrate judges,

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Speaker 6: but not the Supreme Court. And so there's been some

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Speaker 6: discussion of possibly asking the Supreme Court to adopt that

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Speaker 6: kind of language and apply it to itself. I think,

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Speaker 6: in fairness, the Justices at least say, and I think

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Speaker 6: Thomas has said that they consult those ethics requirements in

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Speaker 6: four fifty five, but they're not bound to do it.

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Speaker 6: So this raises questions about reporting and whether it was

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Speaker 6: appropriate what he had done. And there are letters coming

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Speaker 6: from the Senate Judiciary Committee specifically asking questions encouraging Chief

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Speaker 6: Justice Roberts to open an investigation, and I believe there'll

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Speaker 6: be Judiciary Committee hearings, and I think that some Senators

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Speaker 6: have discussed the possibility of requesting that Justice Thomas come

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Speaker 6: in and testify. Whether he will do that is not clear.

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Speaker 6: Whether they will ask him to do it is not clear,

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Speaker 6: So we'll just have to see what happens.

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Speaker 1: They've asked the Chief Justice to come in and testify.

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Speaker 1: I mean, what are the chances that the Chief Justice

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Speaker 1: is going to subject himself to Senate questions?

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Speaker 6: That's a good question. I don't believe he has testified

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Speaker 6: since his own hearing in two thousand and five or

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Speaker 6: two thousand and six when he was confirmed for the

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Speaker 6: Supreme Court. But there's a long tradition of having justices

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Speaker 6: go over and testify the associate justices, and they have

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Speaker 6: done that almost annually. I think about the state of

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Speaker 6: the judiciary in federal courts and those types of issues.

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Speaker 6: Will see what happens in this particular situation. People have

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Speaker 6: pointed out that, of course, with the leak in the

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Speaker 6: Dobbs case, that was sufficiently important to have an investigation,

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Speaker 6: So wondering why there shouldn't be some kind of investigation

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Speaker 6: of this question about whether the reporting requirements were satisfied.

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Speaker 1: Can they force Thomas to testify at a Judiciary committee

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Speaker 1: hearing or do they have no power over him?

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Speaker 6: Well, they could request, and he can decide whether he

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Speaker 6: will or not. If he doesn't, they could subpoena him,

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Speaker 6: but ultimately it would be very difficult, and he might

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Speaker 6: even be willing to litigate that question because of separation

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Speaker 6: of powers kinds of questions. At best, it would likely

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Speaker 6: take some time for that to happen if the Senate

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Speaker 6: were to make that request and he were to deny it.

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Speaker 6: So I think we'll just have to see what the

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Speaker 6: Senate does. But I think there'll be at least some hearing,

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Speaker 6: though they wouldn't be as complete if the Justice doesn't testify.

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Speaker 1: The Democratic lawmakers forwarded their concerns to the US judiciary

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Speaker 1: panel that handles financial disclosures, the Judicial Conference Committee on

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Speaker 1: Financial Disclosure. What can that committee do, if anything?

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Speaker 6: Well, I think it makes policy. It's the policy making

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Speaker 6: arm in the federal courts, comprised of the chief justices

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Speaker 6: the top that too, but it has the chief judges

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Speaker 6: of all the appeals courts as well, as one member

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Speaker 6: elected usually district judge from all those appeals courts, So

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Speaker 6: it's about a twenty five member body, and they do

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Speaker 6: make policy. In this particular committee, I think is asked

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Speaker 6: with ethics and other questions about qualifications, and so the

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Speaker 6: Administrative Officer of the US Courts, the Administrative arm forwarded

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Speaker 6: the Senators and representatives letters over to that committee, and

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Speaker 6: the committee may respond, It may not do anything, or

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Speaker 6: it may undertake some action in response. I think that's

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Speaker 6: the committee out of which the recently revised standards that

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Speaker 6: dealt with questions of gifts or whatever from private parties

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Speaker 6: and talking about tightening those up just this spring. So

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Speaker 6: it has some authority, but not at all clear that

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Speaker 6: it has authority to investigate and take some action.

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Speaker 1: This has been widely publicized. The public's opinion of the

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Speaker 1: Supreme Court has plummeted. What will this do if nothing

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Speaker 1: is done about Clarence Thomas and he just now does

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Speaker 1: what he was supposed to do years ago and files

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Speaker 1: the disclosure. I mean, it just seems like the Supreme

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Speaker 1: Court is above the law.

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Speaker 6: Well, people have said that, and a number of press

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Speaker 6: outlets have made that argument or and criticized the justice

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Speaker 6: in the system and said, why, you know, if all

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Speaker 6: the lower court judges are subject to that, why shouldn't

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Speaker 6: the justices be subject to twenty eight Usc. Four fifty

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Speaker 6: five in terms of conflicts and appearance of conflicts? And

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Speaker 6: I think it comes back to the reluctance of a

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Speaker 6: coequal branch to basically legislate as to the Supreme Court,

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Speaker 6: even as they Congress certainly legislate as to the lower

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Speaker 6: federal courts. But that's in the Constitution, and so I

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Speaker 6: think that's the argument on the other side, that Congress

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Speaker 6: may be reluctant to and may not actually have the

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Speaker 6: power to. And of course the ultimate resolution of that

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Speaker 6: where a check challenged would for example, imposing a code

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Speaker 6: of conduct on the Supreme Court by way of legislation,

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Speaker 6: the ultimate decision maker would be the Supreme Court justices themselves.

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Speaker 6: So it's difficult to get at that problem. The reputation

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Speaker 6: of Supreme Court has been very much on the decline.

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Speaker 6: All of the public data to that effect, the surveys

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Speaker 6: show that it's at one of its lowest points in decades.

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Speaker 6: And you know, it doesn't have the power of the

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Speaker 6: purse or the sword, and really relies on the public

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Speaker 6: to trust it in making these decisions, and those are

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Speaker 6: unelected justices, and so it's critical to democracy that it

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Speaker 6: have respect, otherwise its orders won't be followed or it's decisions.

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Speaker 6: It's critical for the society and the United States to

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Speaker 6: have the utmost respect for the justices.

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Speaker 1: We'll see if the Chief Justice responds to this. Thanks

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Speaker 1: so much, Carl. That's Professor Carl Tobias of the University

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Speaker 1: of Richmond Law School. And that's it for this edition

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Speaker 1: of The Bloomberg Law Show. Remember you can always get

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