Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.
Speaker 2: Two and a half years of sending somebody unwanted emails
Speaker 2: when that person has consistently tried to block them and
Speaker 2: tried to stop them, some of those emails being pretty violent,
Speaker 2: die don't need you f off permanently. Others of those
Speaker 2: emails suggesting pretty strongly that he is watching the person.
Speaker 2: Only a couple of physical sightings. It was that you
Speaker 2: and the white cheap So I want to take it
Speaker 2: as a given that this can be objectively terrifying.
Speaker 1: Justics Elena Kagan described the online threats made to a
Speaker 1: Colorado musician for years, threats that made her so fearful that,
Speaker 1: after trying to block them and getting a protective order,
Speaker 1: she canceled planned performances. Billy Kounterman was convicted of stalking
Speaker 1: and sentenced to four and a half years in prison.
Speaker 1: The Supreme Court was considering Counterman's appeal and his argument
Speaker 1: that his speech should have been protected by the First
Speaker 1: Amendment because it wasn't what's known as true threats. Many
Speaker 1: of the justices indicated that the speaker's state of mind
Speaker 1: was important, and whether the speaker intended to cause fear.
Speaker 1: Here's Justice Sonya Sotomayor.
Speaker 3: But here the court and the prosecutor argued that the
Speaker 3: intent was irrelevant, that he couldn't present any evidence about
Speaker 3: his intent. Correct, that is exactly what about his mental
Speaker 3: state about what he thought? They precluded him completely from
Speaker 3: doing that.
Speaker 1: But several justices like Brett Kavanaugh expressed concerns about the
Speaker 1: implications for cases involving stalking, domestic violence, school threats, and
Speaker 1: the like if the court were to require an approach
Speaker 1: based on the speaker's intent, a.
Speaker 4: Defense like the one that would be present with your
Speaker 4: men's ree get too easy for someone to say, I
Speaker 4: was just joking, I was just kidding. And therefore threats
Speaker 4: that would be really quite dangerous in terms of leading
Speaker 4: to the next step of actually carrying through with the
Speaker 4: threat will not be addressed.
Speaker 1: Joining me is mc snaila, a partner with the Complex
Speaker 1: Appellate Litigation Group MC explain what's meant by a true threat.
Speaker 5: So, if it's determined to be a true threat, then
Speaker 5: the whole question of what the constitutional for which is
Speaker 5: where the prosecution sort of goes away saying, Okay, if
Speaker 5: it's a true threat, then we're not concerned about first
Speaker 5: A mement implications because we don't see societal value and
Speaker 5: protecting in that kind of speech, because we're more concerned
Speaker 5: in that context about individuals fear from violence. You know
Speaker 5: that that's speech and genders. So because of that value judgment,
Speaker 5: if it's a true threat, then we're outside of this
Speaker 5: whole question for cementa production.
Speaker 1: And what was the core issue in this case?
Speaker 5: In this case, the question is what kind of intent
Speaker 5: is required? As a constitutional matter? Is some kind of
Speaker 5: specific intent required to convict someone of stocking or crimes
Speaker 5: involving threats? And so if it is a true threat
Speaker 5: and we're outside that, you're not going to have any
Speaker 5: kind of requirement because the First Amendment doesn't put on
Speaker 5: another layer on top of the criminal statues or even
Speaker 5: the civil statutes. So that's the question really a narrow
Speaker 5: intent question, but it has major ramifications, as the State
Speaker 5: of Colorado and the Slister General pointed out at arguments
Speaker 5: of what kinds of crimes will would be able to
Speaker 5: charge and what kind of crimes will go unredressed if
Speaker 5: a specific intent is required.
Speaker 1: So in Colorado they look at whether the victim would
Speaker 1: reasonably experience the fear of physical violence because of the
Speaker 1: nature of the threats. So in Colorado they're taking it
Speaker 1: from the victim's point of view, and the defendant here says,
Speaker 1: you should take it from the defendant's point of view.
Speaker 1: What the defendants intent is, Well, it's kind.
Speaker 5: Of both counterman and council says, Okay, that's fine if
Speaker 5: you have this objective reasonable recipient of the thread test
Speaker 5: in the law, but you need more than that. You
Speaker 5: also need to look at what was the intent of
Speaker 5: the speaker. Did the speaker know in making her comments
Speaker 5: that the reasonable person receiving them would interpret them as
Speaker 5: being threatening or fear physical violence as a result of that,
Speaker 5: And so they're really arguing kind of both of those requires.
Speaker 1: So in this case, it's so over the top. She
Speaker 1: got a temporary restraining order, she stopped going outside. I mean,
Speaker 1: I don't understand how this could be considered not a
Speaker 1: true threat.
Speaker 5: Yeah, I mean, that's certainly what we argued in our
Speaker 5: Meekas brief, And what we pointed out was the importance
Speaker 5: of the constellation of behavior that stocking statues in particular
Speaker 5: usually require two or three threats or overt acts. It's
Speaker 5: the pattern itself that gives rise to the stocking charge
Speaker 5: or convictions. And here there were thousands of emails over
Speaker 5: many years and direct messages on Facebook to her, and
Speaker 5: many of those seemed to indicate that he might physically
Speaker 5: be tracking her also and had some threats within some
Speaker 5: of the discrete messages like die and things like that,
Speaker 5: which JEEF Justice Roberts pointed out it argument. But in
Speaker 5: his questions that argument, he took each of those statements
Speaker 5: that had particularly scary language in them and said, well,
Speaker 5: would someone interpret this as a threat. Couldn't it be
Speaker 5: interpreted in some other way? Don't we need more context?
Speaker 5: And the context that we argued, and that is really
Speaker 5: part of stocking and domestic violence is the entire context
Speaker 5: of that relationship and prior threats and prior behaviors. So,
Speaker 5: in other words, looking at one discrete direct message wouldn't
Speaker 5: be sufficient, because you'd have to look at the thousands
Speaker 5: of emails that happened despite her blocking this person on
Speaker 5: Facebook six times at least, thereby indicating hey, you know,
Speaker 5: don't reach out to me, and then the language in
Speaker 5: them escalates and indicates that there might be some physical
Speaker 5: stocking conduct going on with it. So when you look
Speaker 5: at it, particularly in the context of the whole constellation
Speaker 5: of threats and behaviors and the doggedness and determination that
Speaker 5: this particular person seemed to have in communicating with her,
Speaker 5: and some of the things that the Cloister General as
Speaker 5: a prosecutor themselves in these kinds of cases at the
Speaker 5: federal level and Colorado were pointing out was yeah, you know,
Speaker 5: we look at this whole constellation.
Speaker 1: What would we lose?
Speaker 5: That's what the justicees We're asking if we adopt each
Speaker 5: of your standards, what do we lose? What's the harm?
Speaker 5: And both the SG and Colorado said, well, you would
Speaker 5: lose prosecutions or even charging the decisions by us, because
Speaker 5: we charge only when we think we're going to get
Speaker 5: a conviction, because otherwise we're very concerned that the victim
Speaker 5: of these of stocking will feel that the law cannot
Speaker 5: protect her, and so we only charge in the most
Speaker 5: egregious situations when we think we're very sure we can
Speaker 5: get a conviction. And if you layer on some kind
Speaker 5: of specifican tounch requirement, there are a lot of what
Speaker 5: the SU called sort of you know, delusional or dbs
Speaker 5: stockers who go just close to the line to something
Speaker 5: that's actually threatening physical violence or like counterman. They claim, oh,
Speaker 5: you know, we thought we were okay, you know, we
Speaker 5: didn't know. We didn't know that they didn't want to
Speaker 5: hear from us, even though to someone who was of
Speaker 5: reasonable mind would certainly have concluded that this person did
Speaker 5: not want to hear from you.
Speaker 1: It's just so surprising to me that they use this
Speaker 1: case to try to get this issue out there.
Speaker 5: Yeah, I agree with you do, and that's what we
Speaker 5: were kind of scratching our heads about too, because there
Speaker 5: was discussion about that, and certainly to me it was
Speaker 5: a really red flag. In the acl use brief, they
Speaker 5: drop a footnote saying nothing we say here would impact
Speaker 5: stocking convictions for conduct, and just the scurse that was
Speaker 5: trying to choose that to saying, oh, well, charges for
Speaker 5: stocking conduct wouldn't be impacted by whatever standard we put here.
Speaker 5: But that presupposes that somehow stokers just limit themselves to
Speaker 5: one behavior. You know, most of them. There's a gradation
Speaker 5: from cyber stocking like this gentleman, to physical stocking of
Speaker 5: your house or home, to a whole wide variety of
Speaker 5: things in between. And it's not like they just select
Speaker 5: one method. So that's a little little bit of a dichotomy.
Speaker 5: I think that doesn't actually happen in real life. But
Speaker 5: I think that also this balancing and these challenges on
Speaker 5: each side. I mean, Essice Tavanaugh and Justice Tagan seemed
Speaker 5: to be very sympathetic to the to Colorado's and the
Speaker 5: SGUs learned about this and seem to consider, well, this
Speaker 5: seems like true thrust to us, dude.
Speaker 1: Most of the justices seem to be leaning toward the
Speaker 1: notion that the speaker's intent is important. Justice Sodo Mayors
Speaker 1: said that this Colorado man convicted of stalking wasn't given
Speaker 1: the opportunity to explain the intention behind the speech.
Speaker 5: Yeah, that was an interesting part of the argument, which
Speaker 5: was the difference between being allowed to testify and explain
Speaker 5: whatever you want to explain in a case like this
Speaker 5: and having that be an element or a requirement that
Speaker 5: the prosecution proved that you specifically intended something. In other words, sure,
Speaker 5: you can go up and say that if you like,
Speaker 5: but as a First Amendment matter, you know, it's not
Speaker 5: required for the prescution to prove that kind of intent
Speaker 5: beyond a reasonable doubt. That discussion came up because in
Speaker 5: this particular case, as a result of the conclusion that
Speaker 5: there was no First Amendment requirement for this specific intent.
Speaker 5: According this case ended up not allowing Tuntermen to testify
Speaker 5: about what he meant or didn't mean in this circumstance.
Speaker 5: Perhaps there might have been another reason they didn't do that,
Speaker 5: which is that he had two prior convictions for stocking
Speaker 5: other women, one of which had ended up in violence.
Speaker 5: So perhaps they wouldn't want that to come out.
Speaker 1: So does it seem as if the justices are going
Speaker 1: to end up requiring some kind of proof of intent
Speaker 1: in these cases?
Speaker 5: There was one possible somewhat middle ground, which was a
Speaker 5: ground that we urged. If the court is going to
Speaker 5: require some kind of intent as a First Amendment matter,
Speaker 5: that at the most it should require a recklessness standard,
Speaker 5: a recklessness standard rather than specific intent with regard to
Speaker 5: knowledge as to whether what they were doing would cause
Speaker 5: a reasonable person to bear violence. So that's an alternate
Speaker 5: standard also that the SG urged, and so that got
Speaker 5: a lot of airtime at argument in terms of would
Speaker 5: this be something that you might be a middle ground
Speaker 5: for The justices said in Maor, Gorsich and Alito, who
Speaker 5: seemed maybe somewhat skeptical of not having any intech requirement
Speaker 5: at all, and then those like Higgan and Kabnaugh who
Speaker 5: were sympathetic to the question of would you be impeding
Speaker 5: prosecutions if you required some kind of specificond time.
Speaker 1: It's an important case. Thanks so much, EMC. That's mc
Speaker 1: sun Gaila of the Complex Appellate Litigation Group. The Senate
Speaker 1: Judiciary Committee advanced seven Biden judicial nominees with bipartisan support,
Speaker 1: while skipping more controversial votes on others. As Democratic Senator
Speaker 1: Dianne Feinstein remains out for health reasons, joining me is
Speaker 1: judiciary expert Carl Tobias, a professor at the University of
Speaker 1: Richmond Law School. Senator Dianne Feinstein has been home in
Speaker 1: California for nearly two months after about with shingles. How
Speaker 1: is that affecting the president's judicial picks.
Speaker 6: Well, there's a lot of talk by different outlets in
Speaker 6: the press that this is holding up his nominees and
Speaker 6: it is delaying somewhat. But there was a hopeful sign,
Speaker 6: very positive sign today in the Judiciary Committee where they
Speaker 6: held votes on people who had bipartisan support. So if
Speaker 6: any of the district nominees had the vote of any
Speaker 6: Republican member could move forward, and seven of them did today,
Speaker 6: and some of them had quite strong votes, like fourteen
Speaker 6: seven or twelve nine, thirteen eight, fourteen eight, so that
Speaker 6: is helpful. There were two or three who did not
Speaker 6: have bipartisan support and so they were held over and
Speaker 6: didn't have votes. But even those people could go forward
Speaker 6: with a discharge petition, which means you need a majority
Speaker 6: vote on the floor. And so I thought this was
Speaker 6: a good sign that people, especially Lindse Graham, who's the
Speaker 6: ranking member, the highest ranking Republican on the committee, showed
Speaker 6: he was willing to work together and he voted for
Speaker 6: all seven of those and some of his colleagues did
Speaker 6: as well, and so that means that they're not being
Speaker 6: held up. Now the question is will Senator Schumer schedule
Speaker 6: them as majority leader on the floor for votes and
Speaker 6: they won't take much time. They only need two hours
Speaker 6: of debate after cloture. So now we have twenty district
Speaker 6: nominees on the floor who could be confirmed, and we
Speaker 6: have still five appellate nominees on the floor who still
Speaker 6: need confirmation votes and debates, and the pellet ones are
Speaker 6: more difficult because you need thirty hours of debate time
Speaker 6: after cloture. Some of them are considered controversial by GOP members.
Speaker 6: So I'm hopeful that this makes it much easier to
Speaker 6: move a number of nominees, and I think that will
Speaker 6: be happening soon, though I haven't seen much sign of
Speaker 6: it on the floor yet, but they just came back
Speaker 6: this week from two weeks away, so that looks more
Speaker 6: positive than some of the news reports that things are
Speaker 6: being delayed, because we could soon see twenty more district
Speaker 6: nominees approved.
Speaker 1: So then, why did the Republicans make such a show
Speaker 1: of not agreeing to put a Democratic senator in Dianne
Speaker 1: Feinstein's place temporarily.
Speaker 6: That's a really good question, and I think it just
Speaker 6: reflects the terrible partisanship and politicization that infects this process.
Speaker 6: All kinds of reasons were given, but Senator McConn all
Speaker 6: sort of personified that everybody looks to him on the
Speaker 6: GOP side and then follows whatever he does as leader,
Speaker 6: and he basically said, we're not going to empower Democrats
Speaker 6: to confirm the small a fraction or some other term
Speaker 6: like that of nominees who are radical activists or incompetent,
Speaker 6: and so that's the position that most of the other
Speaker 6: GOP members took. And today what happened, I think refused
Speaker 6: that to some extent. But that's the problem. They wouldn't
Speaker 6: extend the courtesy to Senator Feinstein, who's a long serving
Speaker 6: member and longtime colleague and very collegial and people genuinely
Speaker 6: like her. And that's what a number of the GFP
Speaker 6: members said. But it seemed like a very easy solution.
Speaker 6: The proposal was Ben Cardon, who had served effectively on
Speaker 6: the committee before from Maryland, is quite moderate Democrats. What
Speaker 6: happened today is a good sign that there'll be cooperation
Speaker 6: for most of the nominees. Then moving them on the
Speaker 6: floor is critical, and I think that won't happen soon.
Speaker 6: Starting maybe next week.
Speaker 1: President Biden tends to nominate Irma Carrillo Ramirez as the
Speaker 1: first Hispanic woman to serve on the Fifth Circuit Court
Speaker 1: of Appeals in Texas, and that is an appointment that
Speaker 1: got the support of both Republican Home state senators. So
Speaker 1: tell us how that worked out well.
Speaker 6: Senators Corner and Cruz deserve some credit here, but they
Speaker 6: supported her. In twenty sixteen, when she was nominated by
Speaker 6: President Obama for the Northern District of Texas District Bench.
Speaker 6: And she had been served as magistrate judge now for
Speaker 6: twenty years and had been an assistant US attorney for
Speaker 6: five or six years before that and in private practice,
Speaker 6: so she's very experienced, very well qualified, but the GOP
Speaker 6: majority refused to schedule her confirmation vote. I think she
Speaker 6: came out of committee very strongly in twenty sixteen, and
Speaker 6: the evaluation committee that Texas has had said in twenty
Speaker 6: six theme that she was excellent, and the Senator supported
Speaker 6: her then. So I think they're supporting her now for
Speaker 6: the fifth Circuit, and that's good to have that seat filled.
Speaker 6: That should proceed very well. And the same day there
Speaker 6: was a nomination by President Biden of Anna di Alba,
Speaker 6: who's been on the Eastern District of California for ten
Speaker 6: months and is highly respected and was smoothly confirmed. So
Speaker 6: optimistic that she will move through the process again and
Speaker 6: be on the Nice Circuit.
Speaker 1: Let's turn to Justice Clarence Thomas, and I want to
Speaker 1: ask first your opinion about the first report was about
Speaker 1: these lavish trips that he took with a Republican mega donor.
Speaker 1: But now there's also reporting of a property deal, So
Speaker 1: money changed hands with that same Republican mega donor and
Speaker 1: it wasn't reported. Is this a violation of the law.
Speaker 6: Well, I think it is a technical violation because us
Speaker 6: all government employees are subject to ethics requirements in terms
Speaker 6: of reporting, and so I think it is clear that
Speaker 6: those should have been reported by the Justice. But twenty
Speaker 6: eight Usc. Fifty five, which speaks to conflicts of interest
Speaker 6: and says if there's an appearance that's sufficient, does not
Speaker 6: bind the Justices. It's the statute that binds all the
Speaker 6: other federal judges, district judges, appellate judges, and magistrate judges,
Speaker 6: but not the Supreme Court. And so there's been some
Speaker 6: discussion of possibly asking the Supreme Court to adopt that
Speaker 6: kind of language and apply it to itself. I think,
Speaker 6: in fairness, the Justices at least say, and I think
Speaker 6: Thomas has said that they consult those ethics requirements in
Speaker 6: four fifty five, but they're not bound to do it.
Speaker 6: So this raises questions about reporting and whether it was
Speaker 6: appropriate what he had done. And there are letters coming
Speaker 6: from the Senate Judiciary Committee specifically asking questions encouraging Chief
Speaker 6: Justice Roberts to open an investigation, and I believe there'll
Speaker 6: be Judiciary Committee hearings, and I think that some Senators
Speaker 6: have discussed the possibility of requesting that Justice Thomas come
Speaker 6: in and testify. Whether he will do that is not clear.
Speaker 6: Whether they will ask him to do it is not clear,
Speaker 6: So we'll just have to see what happens.
Speaker 1: They've asked the Chief Justice to come in and testify.
Speaker 1: I mean, what are the chances that the Chief Justice
Speaker 1: is going to subject himself to Senate questions?
Speaker 6: That's a good question. I don't believe he has testified
Speaker 6: since his own hearing in two thousand and five or
Speaker 6: two thousand and six when he was confirmed for the
Speaker 6: Supreme Court. But there's a long tradition of having justices
Speaker 6: go over and testify the associate justices, and they have
Speaker 6: done that almost annually. I think about the state of
Speaker 6: the judiciary in federal courts and those types of issues.
Speaker 6: Will see what happens in this particular situation. People have
Speaker 6: pointed out that, of course, with the leak in the
Speaker 6: Dobbs case, that was sufficiently important to have an investigation,
Speaker 6: So wondering why there shouldn't be some kind of investigation
Speaker 6: of this question about whether the reporting requirements were satisfied.
Speaker 1: Can they force Thomas to testify at a Judiciary committee
Speaker 1: hearing or do they have no power over him?
Speaker 6: Well, they could request, and he can decide whether he
Speaker 6: will or not. If he doesn't, they could subpoena him,
Speaker 6: but ultimately it would be very difficult, and he might
Speaker 6: even be willing to litigate that question because of separation
Speaker 6: of powers kinds of questions. At best, it would likely
Speaker 6: take some time for that to happen if the Senate
Speaker 6: were to make that request and he were to deny it.
Speaker 6: So I think we'll just have to see what the
Speaker 6: Senate does. But I think there'll be at least some hearing,
Speaker 6: though they wouldn't be as complete if the Justice doesn't testify.
Speaker 1: The Democratic lawmakers forwarded their concerns to the US judiciary
Speaker 1: panel that handles financial disclosures, the Judicial Conference Committee on
Speaker 1: Financial Disclosure. What can that committee do, if anything?
Speaker 6: Well, I think it makes policy. It's the policy making
Speaker 6: arm in the federal courts, comprised of the chief justices
Speaker 6: the top that too, but it has the chief judges
Speaker 6: of all the appeals courts as well, as one member
Speaker 6: elected usually district judge from all those appeals courts, So
Speaker 6: it's about a twenty five member body, and they do
Speaker 6: make policy. In this particular committee, I think is asked
Speaker 6: with ethics and other questions about qualifications, and so the
Speaker 6: Administrative Officer of the US Courts, the Administrative arm forwarded
Speaker 6: the Senators and representatives letters over to that committee, and
Speaker 6: the committee may respond, It may not do anything, or
Speaker 6: it may undertake some action in response. I think that's
Speaker 6: the committee out of which the recently revised standards that
Speaker 6: dealt with questions of gifts or whatever from private parties
Speaker 6: and talking about tightening those up just this spring. So
Speaker 6: it has some authority, but not at all clear that
Speaker 6: it has authority to investigate and take some action.
Speaker 1: This has been widely publicized. The public's opinion of the
Speaker 1: Supreme Court has plummeted. What will this do if nothing
Speaker 1: is done about Clarence Thomas and he just now does
Speaker 1: what he was supposed to do years ago and files
Speaker 1: the disclosure. I mean, it just seems like the Supreme
Speaker 1: Court is above the law.
Speaker 6: Well, people have said that, and a number of press
Speaker 6: outlets have made that argument or and criticized the justice
Speaker 6: in the system and said, why, you know, if all
Speaker 6: the lower court judges are subject to that, why shouldn't
Speaker 6: the justices be subject to twenty eight Usc. Four fifty
Speaker 6: five in terms of conflicts and appearance of conflicts? And
Speaker 6: I think it comes back to the reluctance of a
Speaker 6: coequal branch to basically legislate as to the Supreme Court,
Speaker 6: even as they Congress certainly legislate as to the lower
Speaker 6: federal courts. But that's in the Constitution, and so I
Speaker 6: think that's the argument on the other side, that Congress
Speaker 6: may be reluctant to and may not actually have the
Speaker 6: power to. And of course the ultimate resolution of that
Speaker 6: where a check challenged would for example, imposing a code
Speaker 6: of conduct on the Supreme Court by way of legislation,
Speaker 6: the ultimate decision maker would be the Supreme Court justices themselves.
Speaker 6: So it's difficult to get at that problem. The reputation
Speaker 6: of Supreme Court has been very much on the decline.
Speaker 6: All of the public data to that effect, the surveys
Speaker 6: show that it's at one of its lowest points in decades.
Speaker 6: And you know, it doesn't have the power of the
Speaker 6: purse or the sword, and really relies on the public
Speaker 6: to trust it in making these decisions, and those are
Speaker 6: unelected justices, and so it's critical to democracy that it
Speaker 6: have respect, otherwise its orders won't be followed or it's decisions.
Speaker 6: It's critical for the society and the United States to
Speaker 6: have the utmost respect for the justices.
Speaker 1: We'll see if the Chief Justice responds to this. Thanks
Speaker 1: so much, Carl. That's Professor Carl Tobias of the University
Speaker 1: of Richmond Law School. And that's it for this edition
Speaker 1: of The Bloomberg Law Show. Remember you can always get
Speaker 1: the latest legal news on our Bloomberg Law podcasts. You
Speaker 1: can find them on Apple Podcasts, Spotify, and at www
Speaker 1: dot Bloomberg dot com, slash podcast Slash Law, and remember
Speaker 1: to tune into The Bloomberg Law Show every weeknight at
Speaker 1: ten pm Wall Street Time. I'm June Grosso and you're
Speaker 1: listening to Bloomberg