1 00:00:03,200 --> 00:00:07,960 Speaker 1: This is Bloomberg Law with June Brussel from Bloomberg Radio. 2 00:00:09,200 --> 00:00:12,240 Speaker 1: In a high profile clash of religious rights and gay 3 00:00:12,360 --> 00:00:16,200 Speaker 1: rights at the Supreme Court, religious rights one out the 4 00:00:16,280 --> 00:00:19,840 Speaker 1: courts sided with a Catholic foster care agency that won't 5 00:00:19,880 --> 00:00:23,760 Speaker 1: place children with same sex couples because of its religious beliefs. 6 00:00:24,160 --> 00:00:28,000 Speaker 1: In a unanimous decision, the Court ruled that Philadelphia violated 7 00:00:28,000 --> 00:00:31,480 Speaker 1: the Constitution when it excluded the agency for the city's 8 00:00:31,520 --> 00:00:35,200 Speaker 1: foster care program. During oral arguments, some of the conservative 9 00:00:35,240 --> 00:00:40,240 Speaker 1: Justice Is question Philadelphia's policy, while others like Justice Is 10 00:00:40,320 --> 00:00:45,160 Speaker 1: Samuel Alito and Brett Kavanaugh were upfront in their skepticism. 11 00:00:45,200 --> 00:00:49,800 Speaker 1: It's not about ensuring that same sex couples in Philadelphia 12 00:00:49,880 --> 00:00:53,840 Speaker 1: have the opportunity to be foster parents. It's the fact 13 00:00:53,840 --> 00:00:57,600 Speaker 1: that the city can't stand the message and Catholic Social 14 00:00:57,640 --> 00:01:02,400 Speaker 1: Services and the archdioces are sending by continuing to adhere 15 00:01:02,920 --> 00:01:07,840 Speaker 1: to the old fashioned view about marriage. And what I 16 00:01:07,880 --> 00:01:14,480 Speaker 1: fear here is that the absolutist and extreme position that 17 00:01:14,600 --> 00:01:18,399 Speaker 1: you're articulating would require us to go back on the 18 00:01:18,440 --> 00:01:23,680 Speaker 1: promise of respect for religious believers. Joining me as constitutional 19 00:01:23,760 --> 00:01:28,080 Speaker 1: law professor Steve Sanders of Indiana University's Mara School of Law. 20 00:01:28,760 --> 00:01:32,600 Speaker 1: Some people expected to split along ideological lines because of 21 00:01:32,680 --> 00:01:36,600 Speaker 1: religious rights versus gay rights. Were you surprised by the 22 00:01:36,720 --> 00:01:40,280 Speaker 1: unanimous ruling? Well, I wasn't surprised by the unanimity of 23 00:01:40,319 --> 00:01:43,520 Speaker 1: the ruling once I read the opinion and realized just 24 00:01:43,720 --> 00:01:48,080 Speaker 1: really how narrow this decision is. It really does not 25 00:01:48,240 --> 00:01:51,320 Speaker 1: break any new ground. It is more or less a 26 00:01:51,480 --> 00:01:56,880 Speaker 1: straightforward application of existing Supreme Court precedent. And frankly, if 27 00:01:57,000 --> 00:02:00,160 Speaker 1: the City of Philadelphia decides to make a fairly minor 28 00:02:00,160 --> 00:02:03,720 Speaker 1: modification of its policy, it's possible that it could go 29 00:02:03,840 --> 00:02:08,120 Speaker 1: back to not doing business with Catholic social services. So 30 00:02:08,400 --> 00:02:11,160 Speaker 1: the opinion seems to have been crafted to be as 31 00:02:11,240 --> 00:02:15,440 Speaker 1: narrow as possible while being faithful to the courts precedents. 32 00:02:15,440 --> 00:02:18,160 Speaker 1: That I think explains why it got the support of 33 00:02:18,440 --> 00:02:22,280 Speaker 1: Justice Bryer, Justice so to Mayor and especially Justice Kagan, 34 00:02:22,360 --> 00:02:25,200 Speaker 1: who I think would not have joined an opinion that 35 00:02:25,280 --> 00:02:30,320 Speaker 1: would have resulted in what she saw was an inappropriate 36 00:02:30,400 --> 00:02:36,520 Speaker 1: expansion of the rights of religious organizations. Like the Obamacare decision, 37 00:02:36,639 --> 00:02:39,440 Speaker 1: This case was argued way back in November. Do you 38 00:02:39,480 --> 00:02:41,919 Speaker 1: think this decision took so long to come down because 39 00:02:42,000 --> 00:02:46,760 Speaker 1: the justices, or perhaps Chief Justice Roberts, was lobbying to 40 00:02:46,880 --> 00:02:50,760 Speaker 1: have an unanimous opinion. I suspect the main thing that 41 00:02:50,960 --> 00:02:53,360 Speaker 1: caused it to take so long to come down was 42 00:02:53,440 --> 00:02:56,720 Speaker 1: the fact that Justice Alito wrote a treatise. You know, 43 00:02:56,840 --> 00:03:00,359 Speaker 1: Justice Alito's concurrence is by far the long gust of 44 00:03:00,400 --> 00:03:03,400 Speaker 1: all the opinions. It was joined by Justice Gore, such 45 00:03:03,440 --> 00:03:09,000 Speaker 1: Injustice Thomas. Justice Alito makes a full throated argument in 46 00:03:09,160 --> 00:03:13,680 Speaker 1: favor of a radical, really revolution in the Supreme Court's 47 00:03:13,720 --> 00:03:16,920 Speaker 1: jurisprudence of the free exercise clause, and that would be 48 00:03:17,040 --> 00:03:19,839 Speaker 1: to get rid of a thirty year old precedent called 49 00:03:19,880 --> 00:03:23,800 Speaker 1: employment Division versus Smith. That was the larger question on 50 00:03:23,840 --> 00:03:26,840 Speaker 1: the table in this case that the Court theoretically could 51 00:03:26,840 --> 00:03:29,560 Speaker 1: have reached. The opinion of the Court said, you know, 52 00:03:29,639 --> 00:03:33,880 Speaker 1: we don't need to reconsider a basic precedent in order 53 00:03:33,919 --> 00:03:37,280 Speaker 1: to resolve this particular case. Is they's a Justice Alito, really, 54 00:03:37,440 --> 00:03:39,760 Speaker 1: you know, just sort of wrote a brief in favor 55 00:03:39,800 --> 00:03:43,600 Speaker 1: of overturning employment of Division versus Smith, something that even 56 00:03:43,720 --> 00:03:47,360 Speaker 1: Justice Barrett basically said she wasn't interested in doing in 57 00:03:47,400 --> 00:03:52,400 Speaker 1: this case. So Smith is a decision written by conservative 58 00:03:52,640 --> 00:03:56,360 Speaker 1: icon Justice Anti and Scalia. That's been the target of 59 00:03:56,440 --> 00:04:01,760 Speaker 1: religious rights groups recently. Why so, that's correct because employee 60 00:04:01,800 --> 00:04:05,520 Speaker 1: division versus Smith basically said, if a law is neutral 61 00:04:05,640 --> 00:04:08,320 Speaker 1: and if it's generally applicable, if it's just a law 62 00:04:08,400 --> 00:04:11,560 Speaker 1: that sort of everybody has to obey, it doesn't target 63 00:04:11,640 --> 00:04:14,880 Speaker 1: religion in one way or another, then even if that 64 00:04:15,000 --> 00:04:20,680 Speaker 1: law impinges on your religious practice, basically too bad. A 65 00:04:20,760 --> 00:04:24,760 Speaker 1: religious believer is not a law unto himself or herself. 66 00:04:25,040 --> 00:04:28,320 Speaker 1: Justice Scalia rode, And so, if there is a truly 67 00:04:28,520 --> 00:04:32,560 Speaker 1: neutral and generally applicable, let's say, gay rights law, the 68 00:04:32,640 --> 00:04:35,760 Speaker 1: fact that a business owner or a social service agency 69 00:04:35,920 --> 00:04:39,479 Speaker 1: believes that complying with that law violates its religious liberty 70 00:04:39,960 --> 00:04:43,040 Speaker 1: is not good enough to kick it up to strict 71 00:04:43,120 --> 00:04:47,479 Speaker 1: scrutiny to demand more of the government to justify that law. 72 00:04:47,920 --> 00:04:51,760 Speaker 1: That's what Justice Alito and Justice Thomas and Justice Gorse 73 00:04:52,200 --> 00:04:54,200 Speaker 1: would like to change. They would like to make it 74 00:04:54,279 --> 00:04:59,440 Speaker 1: easier for religious believers to challenge any law that they 75 00:04:59,480 --> 00:05:03,320 Speaker 1: believe in hinges on their religious exercise. What the court 76 00:05:03,400 --> 00:05:06,520 Speaker 1: found in this case, in the Fulton case, was that 77 00:05:06,640 --> 00:05:10,800 Speaker 1: the law was not actually generally applicable because it allowed 78 00:05:10,839 --> 00:05:15,600 Speaker 1: for the possibility of exceptions to the non discrimination policy, 79 00:05:15,720 --> 00:05:18,000 Speaker 1: and the fact the city wasn't willing to get Catholic 80 00:05:18,040 --> 00:05:22,440 Speaker 1: Social Services an exception meant that Catholic Social Services wasn't 81 00:05:22,480 --> 00:05:25,880 Speaker 1: being treated equally, So that did kick the level of 82 00:05:25,880 --> 00:05:29,520 Speaker 1: scrutiny up to strict scrutiny because religion was being treated 83 00:05:29,880 --> 00:05:34,360 Speaker 1: in a disadvantaged way. Basically, all the City of Philadelphia 84 00:05:34,400 --> 00:05:37,680 Speaker 1: has to do is get rid of that provision that 85 00:05:37,839 --> 00:05:43,640 Speaker 1: indicates that the Social Services administration can make exceptions. If 86 00:05:43,680 --> 00:05:47,479 Speaker 1: it makes clear the non discrimination provision applies in a 87 00:05:47,600 --> 00:05:52,440 Speaker 1: blanket way without any exceptions, then Catholic Social Service agency 88 00:05:52,440 --> 00:05:54,359 Speaker 1: will have to choose whether to be bound by that 89 00:05:54,520 --> 00:05:57,240 Speaker 1: or whether to not do business with the city. That's 90 00:05:57,279 --> 00:05:59,680 Speaker 1: assuming the city decides to go ahead and do that. 91 00:06:00,000 --> 00:06:03,679 Speaker 1: How political pressures and other things made forced the city 92 00:06:03,760 --> 00:06:06,960 Speaker 1: to just sort of keep the status quo. As we 93 00:06:07,040 --> 00:06:11,120 Speaker 1: discussed before, this sounds a lot like the Masterpiece Cake 94 00:06:11,200 --> 00:06:14,800 Speaker 1: Shop case where a baker refused to make a wedding 95 00:06:14,839 --> 00:06:18,960 Speaker 1: cake for same sex couple. There's Supreme Court there refused 96 00:06:19,000 --> 00:06:22,440 Speaker 1: to decide the central issue. Did this case clear that 97 00:06:22,560 --> 00:06:27,000 Speaker 1: up at all or is it still nebulous. It really didn't. 98 00:06:27,080 --> 00:06:30,719 Speaker 1: This case is a little bit different because Masterpiece Cake Shop. 99 00:06:30,760 --> 00:06:35,200 Speaker 1: In that case, the baker, recognizing that this old precedent 100 00:06:35,240 --> 00:06:38,880 Speaker 1: of employment Division versus Smith made it difficult for him 101 00:06:38,920 --> 00:06:42,440 Speaker 1: to succeed under the free exercise clause, try to free 102 00:06:42,440 --> 00:06:47,719 Speaker 1: speech argument basically saying that his cakes represented expressive speech. 103 00:06:48,279 --> 00:06:50,840 Speaker 1: That was quite a novel argument, and as you say, 104 00:06:50,880 --> 00:06:54,479 Speaker 1: the court essentially didn't reach that. The Court decided it 105 00:06:54,520 --> 00:06:57,600 Speaker 1: on a much narrower basis that this baker had been 106 00:06:58,040 --> 00:07:03,160 Speaker 1: sort of mistreated during the adjudication process, that his religion 107 00:07:03,200 --> 00:07:06,280 Speaker 1: had been disparaged, and government doesn't get to do that. 108 00:07:06,560 --> 00:07:10,320 Speaker 1: But it dodged making a statement about the larger question 109 00:07:10,480 --> 00:07:14,800 Speaker 1: of free speech law when it involves religious speech. This 110 00:07:14,840 --> 00:07:18,120 Speaker 1: case is similar in fact, Justice Alito's opinion sort of 111 00:07:18,120 --> 00:07:23,400 Speaker 1: analogized at Masterpiece, and that this decision Fulton was focused 112 00:07:23,400 --> 00:07:27,000 Speaker 1: on the free exercise clause, not the free speech part 113 00:07:27,000 --> 00:07:29,840 Speaker 1: of the First Amendment. It's different than Masterpiece in that way, 114 00:07:30,080 --> 00:07:32,960 Speaker 1: but it's similar in the sense that this is really 115 00:07:33,000 --> 00:07:38,640 Speaker 1: a decision that only applies to the specific circumstances involving 116 00:07:38,800 --> 00:07:42,960 Speaker 1: this agency and the City of Philadelphia. It doesn't break 117 00:07:43,000 --> 00:07:46,480 Speaker 1: any new ground. It doesn't expand the meaning or the 118 00:07:46,560 --> 00:07:49,840 Speaker 1: scope of religious liberty beyond what the Supreme Court has 119 00:07:49,880 --> 00:07:53,720 Speaker 1: already said in its precedence. Some are calling this a 120 00:07:53,840 --> 00:07:57,920 Speaker 1: setback for gay rights. Do you agree? I think that's 121 00:07:57,960 --> 00:08:02,440 Speaker 1: probably an overstatement. So one way of viewing the situation 122 00:08:02,600 --> 00:08:07,680 Speaker 1: is that cities like Philadelphia and other government agencies should 123 00:08:07,720 --> 00:08:12,680 Speaker 1: take a hard line and say any time any social 124 00:08:12,720 --> 00:08:17,880 Speaker 1: services provider, any business, any private organization refuses to respect 125 00:08:17,920 --> 00:08:21,240 Speaker 1: the rights of gay people, they must give up their 126 00:08:21,280 --> 00:08:24,280 Speaker 1: religious beliefs and they must tow the line and and 127 00:08:24,480 --> 00:08:29,640 Speaker 1: honor the government's nondiscrimination law. One thing that may have 128 00:08:29,680 --> 00:08:31,640 Speaker 1: been going on in the background here that may have 129 00:08:31,680 --> 00:08:35,480 Speaker 1: also been been persuasive to the justices is um no 130 00:08:35,679 --> 00:08:39,400 Speaker 1: gay couple in Philadelphia had ever been turned away from 131 00:08:39,440 --> 00:08:42,240 Speaker 1: the foster system. The way it worked was if Catholic 132 00:08:42,320 --> 00:08:46,760 Speaker 1: Social Services decided they couldn't certify a married, same sex 133 00:08:46,840 --> 00:08:49,760 Speaker 1: couple to be a foster parent, they simply referred the 134 00:08:49,760 --> 00:08:53,440 Speaker 1: couple to one of twenty some other agencies in the 135 00:08:53,440 --> 00:08:57,319 Speaker 1: city of Philadelphia that did the same work for the city. 136 00:08:57,800 --> 00:09:01,400 Speaker 1: So I think what we see here is maybe an 137 00:09:01,480 --> 00:09:06,640 Speaker 1: argument that look, no gay couple was actually discriminated against. 138 00:09:06,679 --> 00:09:10,320 Speaker 1: Probably no same sex couple would ever be denied the 139 00:09:10,480 --> 00:09:13,800 Speaker 1: right to foster a child. Um, there might just be 140 00:09:13,840 --> 00:09:17,240 Speaker 1: a slight delay because they'd go to a different agency. 141 00:09:17,280 --> 00:09:20,959 Speaker 1: But that allows Catholic Social Services to stand by its 142 00:09:21,160 --> 00:09:25,160 Speaker 1: religious principles. So I guess I would disagree that this 143 00:09:25,240 --> 00:09:29,360 Speaker 1: is a big, meaningful setback for gay rights. If you 144 00:09:29,480 --> 00:09:33,640 Speaker 1: are subscribing to a sort of absolutist view of non 145 00:09:33,679 --> 00:09:37,840 Speaker 1: discrimination laws, then maybe you don't like this decision. As 146 00:09:37,880 --> 00:09:42,240 Speaker 1: a practical matter, this decision probably represents the kind of 147 00:09:42,280 --> 00:09:46,320 Speaker 1: accommodation that even some liberal scholars have been calling for 148 00:09:46,559 --> 00:09:51,840 Speaker 1: that allows religious organizations to be faithful to their principles 149 00:09:51,960 --> 00:09:57,920 Speaker 1: without doing any actual practical harm to the ability of 150 00:09:58,280 --> 00:10:01,720 Speaker 1: same sex couples to function in society and to be 151 00:10:01,760 --> 00:10:05,320 Speaker 1: treated equally. But this is another in a long line 152 00:10:05,480 --> 00:10:08,880 Speaker 1: of victories for religious groups of the Supreme Court. This 153 00:10:08,960 --> 00:10:12,200 Speaker 1: is a court that has taken a very sympathetic and 154 00:10:12,280 --> 00:10:16,320 Speaker 1: expansive view of religion. Has protected religion, whether it's a 155 00:10:16,480 --> 00:10:20,480 Speaker 1: case challenging something as an establishment of religion, or religious 156 00:10:20,559 --> 00:10:24,320 Speaker 1: organizations or religious people saying that a law impinges on 157 00:10:24,360 --> 00:10:28,679 Speaker 1: their free exercise rights. I think your impression is not wrong. 158 00:10:29,320 --> 00:10:32,600 Speaker 1: The law has evolved in recent years in a way 159 00:10:32,679 --> 00:10:38,160 Speaker 1: that is increasingly um sympathetic to religion, increasingly insists that 160 00:10:38,240 --> 00:10:42,720 Speaker 1: religion be treated the same as other kinds of functions 161 00:10:43,040 --> 00:10:47,320 Speaker 1: and not be disadvantaged in some way. It's entirely likely 162 00:10:47,440 --> 00:10:50,280 Speaker 1: that more cases like this are going to keep coming 163 00:10:50,320 --> 00:10:53,560 Speaker 1: to the Supreme Court. This decision didn't break any new 164 00:10:53,640 --> 00:10:59,439 Speaker 1: ground really in advancing the religious liberty rights of religious believers. 165 00:10:59,480 --> 00:11:03,520 Speaker 1: It's simply found a way to fit this situation into 166 00:11:03,600 --> 00:11:07,720 Speaker 1: the Court's existing law, which says religion can't be singled 167 00:11:07,720 --> 00:11:11,480 Speaker 1: out for disadvantageous treatment, which is what the Court thought 168 00:11:11,559 --> 00:11:14,680 Speaker 1: was going on here. But you know that this opinion 169 00:11:14,760 --> 00:11:18,880 Speaker 1: also doesn't signal that the Court is closing the door 170 00:11:18,920 --> 00:11:24,480 Speaker 1: to other theories and other claims of religious discrimination. So 171 00:11:24,640 --> 00:11:28,040 Speaker 1: the decision announced the same day the Obamacare case is 172 00:11:28,320 --> 00:11:31,480 Speaker 1: sort of largely seen as the Court saying, look, enough 173 00:11:31,520 --> 00:11:34,360 Speaker 1: of this, We're just done with the challenges to Obamacare. 174 00:11:34,640 --> 00:11:37,840 Speaker 1: This decision more or less maintains a sort of status quo. 175 00:11:38,280 --> 00:11:42,760 Speaker 1: Thanks Steve. That's Steve Sanders of Indiana University's Mors School 176 00:11:42,800 --> 00:11:47,760 Speaker 1: of Law. The effort to lift The Biden administration's moratorium 177 00:11:47,840 --> 00:11:50,840 Speaker 1: on federal lease sales got a surprise win in federal 178 00:11:50,880 --> 00:11:54,720 Speaker 1: district court. On Tuesday, a federal judge in Louisiana granted 179 00:11:54,720 --> 00:11:59,320 Speaker 1: a preliminary injunction lifting the administration's moratorium on new lease 180 00:11:59,360 --> 00:12:03,040 Speaker 1: sales for oil and gas development on federal lands. Joining 181 00:12:03,040 --> 00:12:06,240 Speaker 1: me is Brandon Barnes. Joining me is Brandon Barnes, Bloomberg 182 00:12:06,280 --> 00:12:10,880 Speaker 1: Intelligence senior litigation analyst. So Brandon tell us about this decision. 183 00:12:11,920 --> 00:12:15,280 Speaker 1: We had an interesting decision coming out of the Louisiana 184 00:12:15,480 --> 00:12:19,720 Speaker 1: Federal court this week, and the judge put a preliminary 185 00:12:19,720 --> 00:12:24,040 Speaker 1: in junction in place, granting a motion request from thirteen 186 00:12:24,040 --> 00:12:27,959 Speaker 1: different states that had basically asked the court to put 187 00:12:28,000 --> 00:12:32,680 Speaker 1: on hold the hold that the President Biden's administration put 188 00:12:32,679 --> 00:12:36,520 Speaker 1: in place with respect to the federal government holding oil 189 00:12:36,559 --> 00:12:41,000 Speaker 1: and gas lease sales, which is basically property that the 190 00:12:41,160 --> 00:12:45,319 Speaker 1: federal government owns or holds that they then leased back 191 00:12:45,400 --> 00:12:48,120 Speaker 1: out for oil and gas development like Gulf of Mexico 192 00:12:48,360 --> 00:12:51,640 Speaker 1: or cocaine lead in Alaska, or on shore for someam 193 00:12:51,679 --> 00:12:55,559 Speaker 1: areas like the Permian Basin in New Mexico. The judge 194 00:12:55,600 --> 00:12:59,000 Speaker 1: decides there'd be irreparable harm. How so isn't it just 195 00:12:59,200 --> 00:13:03,920 Speaker 1: money involved? Well, Uh, economic harm can be one of 196 00:13:03,920 --> 00:13:09,040 Speaker 1: the factors that goes into the irreparable harm calculus for 197 00:13:09,280 --> 00:13:12,839 Speaker 1: preliminary junctions. We've seen it in other cases here. Since 198 00:13:12,840 --> 00:13:16,680 Speaker 1: you had the Stewards being the thirteen s case, the 199 00:13:16,679 --> 00:13:19,240 Speaker 1: plaintiffs for these thirteen states, part of their standing, part 200 00:13:19,280 --> 00:13:22,320 Speaker 1: of their ability to bring this claim revolved around the 201 00:13:22,360 --> 00:13:26,880 Speaker 1: fact that they garner a significant amount of money from 202 00:13:27,080 --> 00:13:30,720 Speaker 1: these federal oil and gas leases. They have a there's 203 00:13:30,720 --> 00:13:33,280 Speaker 1: a sharing agreement for some of that revenue, there's royalties 204 00:13:33,320 --> 00:13:36,280 Speaker 1: involved for them, so it's a significant part of their 205 00:13:36,360 --> 00:13:39,960 Speaker 1: business at the state level in their budgeting process. But 206 00:13:40,040 --> 00:13:42,440 Speaker 1: also the court took a new account of a fair 207 00:13:42,440 --> 00:13:44,760 Speaker 1: amount of you know this idea that there would be 208 00:13:44,840 --> 00:13:47,040 Speaker 1: job losses at some point and that would impact the 209 00:13:47,080 --> 00:13:50,920 Speaker 1: states as well. So what is the Biden administration doing? Now? 210 00:13:51,160 --> 00:13:55,000 Speaker 1: This isn't about saying no, no more leases here. This 211 00:13:55,080 --> 00:13:59,320 Speaker 1: is about wait and see, let's let's figure this out. Yeah, 212 00:13:59,360 --> 00:14:02,920 Speaker 1: it's been a pretty common tactic for presidents over the years. 213 00:14:03,559 --> 00:14:06,360 Speaker 1: Most presidents have done it with different programs where and 214 00:14:06,480 --> 00:14:09,120 Speaker 1: politically it's it's you know, a smart middle ground, because 215 00:14:09,200 --> 00:14:10,480 Speaker 1: what you do is you come in and you say, 216 00:14:10,520 --> 00:14:12,840 Speaker 1: wait a second, we need to take a look. We 217 00:14:12,880 --> 00:14:14,640 Speaker 1: need to take a look at this. Do our study, 218 00:14:15,320 --> 00:14:18,000 Speaker 1: check it out. Make sure that you know we're appropriately 219 00:14:18,040 --> 00:14:21,360 Speaker 1: in this case protecting all the people. Were getting the 220 00:14:21,400 --> 00:14:24,200 Speaker 1: amount of money that the people deserve out of these 221 00:14:24,240 --> 00:14:27,160 Speaker 1: private companies who were doing this development, and so we'll 222 00:14:27,160 --> 00:14:30,560 Speaker 1: do a review. The review process has been going on 223 00:14:30,760 --> 00:14:34,360 Speaker 1: since essentially the decuative Order came out in January this year, 224 00:14:34,960 --> 00:14:38,160 Speaker 1: and it doesn't really have a set end time, and 225 00:14:38,320 --> 00:14:40,960 Speaker 1: I think that's part of the problem. Not explicitly, but 226 00:14:41,120 --> 00:14:44,960 Speaker 1: certainly the oil and gas companies and the States are 227 00:14:45,520 --> 00:14:47,760 Speaker 1: looking ahead and thinking, well, that's going to present a 228 00:14:47,760 --> 00:14:50,160 Speaker 1: major challenge later on once the inventory starts to draw 229 00:14:50,240 --> 00:14:52,840 Speaker 1: down in terms of new leases and new properties. But 230 00:14:53,040 --> 00:14:56,480 Speaker 1: right now, they haven't suffered any harm at this point. 231 00:14:57,360 --> 00:14:59,920 Speaker 1: You wouldn't think so from the company perspective. A lot 232 00:15:00,000 --> 00:15:02,600 Speaker 1: of the companies opted to start to bulk up on 233 00:15:03,000 --> 00:15:06,600 Speaker 1: the leases and permits before the Biden administration came in, 234 00:15:07,000 --> 00:15:11,240 Speaker 1: especially towards the end of last year. As you know, 235 00:15:11,240 --> 00:15:14,000 Speaker 1: President Biden was making his way around the campaign trail 236 00:15:14,000 --> 00:15:15,920 Speaker 1: and making promises that we were going to put a 237 00:15:15,920 --> 00:15:18,840 Speaker 1: moratorium in place or take another look at this, especially 238 00:15:18,920 --> 00:15:22,880 Speaker 1: with respect to the horizontal drilling and fracking. So there's 239 00:15:23,000 --> 00:15:26,240 Speaker 1: a backlog. I think that the government in their similar 240 00:15:26,240 --> 00:15:30,720 Speaker 1: filings reported that the backlog is seventy permits to drill, 241 00:15:30,760 --> 00:15:33,640 Speaker 1: not just leases, but actually approved permits to drill. Now 242 00:15:33,680 --> 00:15:38,440 Speaker 1: that's not abnormal given these programs that the drillers are 243 00:15:38,440 --> 00:15:40,880 Speaker 1: putting in place last for a certain period of time, 244 00:15:40,920 --> 00:15:44,520 Speaker 1: because you need to have a good pipeline of wells 245 00:15:44,680 --> 00:15:49,160 Speaker 1: to drill so that as your production declines on your 246 00:15:49,160 --> 00:15:52,800 Speaker 1: current wells, you have the other ones coming online, particularly 247 00:15:52,840 --> 00:15:56,000 Speaker 1: for horizontal drilling, where you can extend those laterals further 248 00:15:56,080 --> 00:15:59,360 Speaker 1: into contiguous properties that maybe you didn't have before, and 249 00:15:59,440 --> 00:16:02,400 Speaker 1: that helps sort of smooth out the economics of drilling 250 00:16:02,400 --> 00:16:06,080 Speaker 1: in a certain area. The royalty rates for drilling have 251 00:16:06,200 --> 00:16:09,280 Speaker 1: been the same for a century, so the Biden administration 252 00:16:09,360 --> 00:16:12,560 Speaker 1: might think about raising them. That's certainly on the table, 253 00:16:12,880 --> 00:16:15,600 Speaker 1: I think, particularly Interior has made some of those statements. 254 00:16:15,760 --> 00:16:19,760 Speaker 1: That's an easy middle path to discuss what's going on here. 255 00:16:19,960 --> 00:16:22,480 Speaker 1: You know, the other ideas that maybe they need to 256 00:16:22,520 --> 00:16:25,560 Speaker 1: tighten up from the environmental review process they're doing for 257 00:16:25,640 --> 00:16:29,120 Speaker 1: these is they're pretty boilerplate, and they've been hammered in 258 00:16:29,160 --> 00:16:31,880 Speaker 1: the courts recently in a couple of different cases around 259 00:16:31,920 --> 00:16:35,600 Speaker 1: prior leases last year, and so the ideas maybe they 260 00:16:35,680 --> 00:16:39,560 Speaker 1: might try to tighten up on climate change analysis contribution 261 00:16:39,600 --> 00:16:42,840 Speaker 1: of greenhouse gasses from from these activities in addition to 262 00:16:42,920 --> 00:16:45,720 Speaker 1: looking at the royalties. But the judge based it on 263 00:16:46,040 --> 00:16:50,760 Speaker 1: that the Biden administration needs congressional approval to stop and 264 00:16:50,800 --> 00:16:54,600 Speaker 1: think about this. That's right. So the real crux of 265 00:16:54,680 --> 00:16:58,880 Speaker 1: the prelimary injunction opinion revolved around the fact that the 266 00:16:59,080 --> 00:17:03,000 Speaker 1: Outer Continental Shelf Act, which is what essentially allows the 267 00:17:03,000 --> 00:17:07,399 Speaker 1: federal government to run these offshore acreage s lease sales, 268 00:17:08,040 --> 00:17:10,840 Speaker 1: and the Mineral Leasing Act, which is the onshore version 269 00:17:10,880 --> 00:17:17,240 Speaker 1: of that, both of them have specific statutory requirements that, Okay, 270 00:17:17,320 --> 00:17:20,040 Speaker 1: for Outer Continental Shelf Act, you have to do a 271 00:17:20,080 --> 00:17:23,200 Speaker 1: five year plan. That five year plan lays out exactly 272 00:17:23,200 --> 00:17:25,679 Speaker 1: how many lease sales you're going to have. Once that 273 00:17:25,880 --> 00:17:30,000 Speaker 1: is a final rule from Interior, then you run those leases. 274 00:17:30,040 --> 00:17:32,720 Speaker 1: And then Mineral Leasing Act similarly says you have to 275 00:17:32,840 --> 00:17:37,359 Speaker 1: run at least quarterly lease sales and every year and 276 00:17:37,359 --> 00:17:40,679 Speaker 1: and go forward in that way. The allegation which the 277 00:17:40,680 --> 00:17:43,959 Speaker 1: court grabbed onto was, you know, the Biden administration, as 278 00:17:44,000 --> 00:17:46,639 Speaker 1: the president, the executive branch doesn't have the power to 279 00:17:46,640 --> 00:17:48,840 Speaker 1: come in and say we're stopping that because those are 280 00:17:48,880 --> 00:17:51,640 Speaker 1: coming out of the legislative branch. That would be Congress, 281 00:17:51,680 --> 00:17:55,000 Speaker 1: who has the power to do that and therefore put 282 00:17:55,040 --> 00:17:58,399 Speaker 1: the pulinary injunction in place. Now, so this is a 283 00:17:58,520 --> 00:18:03,200 Speaker 1: judge in Louisiana issuing a decision that covers the entire 284 00:18:03,320 --> 00:18:08,679 Speaker 1: United States and nationwide injunction from Louisiana. That's right, you know, 285 00:18:08,760 --> 00:18:12,280 Speaker 1: it's um as justice courts such as called them cosmic 286 00:18:12,320 --> 00:18:16,399 Speaker 1: injunctions because they apply to the entire universe. It's been 287 00:18:16,440 --> 00:18:19,439 Speaker 1: a practice that got a lot more attention under President 288 00:18:19,440 --> 00:18:24,119 Speaker 1: Trump's administration, particularly revolving around to the immigration changes that 289 00:18:24,200 --> 00:18:26,359 Speaker 1: he was trying to put in place, different policies at 290 00:18:26,400 --> 00:18:30,840 Speaker 1: the border, and the use of them has increased over time. 291 00:18:31,280 --> 00:18:33,479 Speaker 1: The ideas there's that district court, which is your lowest 292 00:18:33,520 --> 00:18:37,760 Speaker 1: federal court, putting something in place that impacts the entire country. 293 00:18:38,160 --> 00:18:41,440 Speaker 1: It's an interesting one. I think at a certain point, 294 00:18:42,160 --> 00:18:43,880 Speaker 1: you know, you're just reading long of your articles because 295 00:18:43,880 --> 00:18:48,520 Speaker 1: it becomes academic. In practice, these are allowed, and you 296 00:18:48,560 --> 00:18:51,199 Speaker 1: can have competing ones because there's a sort of a 297 00:18:51,240 --> 00:18:56,879 Speaker 1: coequal jurisdiction across different district courts, and only up until 298 00:18:56,920 --> 00:18:59,320 Speaker 1: such time as you have a more supreme court, which 299 00:18:59,320 --> 00:19:01,200 Speaker 1: would be like an Hills Court for the next level 300 00:19:01,200 --> 00:19:03,840 Speaker 1: of obviously the U. S. Supreme Court making a different 301 00:19:03,840 --> 00:19:06,840 Speaker 1: decision or confirming that decision. Do you then get into 302 00:19:06,880 --> 00:19:12,120 Speaker 1: a place where you might have multiple jurisdictions agreeing. So 303 00:19:12,200 --> 00:19:16,720 Speaker 1: it's allowed. Uh. Some people don't like it. Others look 304 00:19:16,760 --> 00:19:19,119 Speaker 1: at it more as as a legal academic issue that 305 00:19:19,160 --> 00:19:22,320 Speaker 1: can be discussed at, you know, in ivory toilers. So 306 00:19:22,840 --> 00:19:26,199 Speaker 1: either way, we have an injunction in place, and whatever 307 00:19:26,280 --> 00:19:28,840 Speaker 1: happens in other courts, which there's another court considering the 308 00:19:28,840 --> 00:19:31,720 Speaker 1: same issue in Wyoming right now, it doesn't really matter 309 00:19:32,080 --> 00:19:35,480 Speaker 1: until we get to the next level. So the Interior 310 00:19:35,520 --> 00:19:39,640 Speaker 1: Department said, we're reviewing the judge's opinion and will comply 311 00:19:39,760 --> 00:19:44,879 Speaker 1: with the decision. Does that mean they will not appeal? Uh? 312 00:19:44,920 --> 00:19:47,680 Speaker 1: I doubt that. I think that they will appeal. Certainly 313 00:19:47,720 --> 00:19:50,520 Speaker 1: they're people who would be happy to appeal for them 314 00:19:50,560 --> 00:19:53,960 Speaker 1: with an interest in this. As there were multiple interveneers 315 00:19:54,119 --> 00:19:58,040 Speaker 1: at the district court level. From the environmental interest side, 316 00:19:58,160 --> 00:20:00,679 Speaker 1: I would expect them to appeal. You want to preserve 317 00:20:00,680 --> 00:20:03,760 Speaker 1: your rights going forward anyway. But in one sense, you 318 00:20:03,800 --> 00:20:06,320 Speaker 1: know you're appealing a preliminary injunction, so the case is 319 00:20:06,359 --> 00:20:08,760 Speaker 1: still alive at the district court level anyway, so you 320 00:20:08,840 --> 00:20:11,280 Speaker 1: can do it pretty quickly. But you know, they do 321 00:20:11,400 --> 00:20:14,600 Speaker 1: have a duty to abide by what the court said 322 00:20:14,680 --> 00:20:17,320 Speaker 1: in the in the very near term. And the fifth 323 00:20:17,320 --> 00:20:21,680 Speaker 1: Circuit that they'll be appealing to is the most conservative 324 00:20:22,160 --> 00:20:25,800 Speaker 1: circuit in the country. Do you have any inkling as 325 00:20:25,840 --> 00:20:29,520 Speaker 1: to what it might do. Well. It's interesting because you know, 326 00:20:29,560 --> 00:20:34,040 Speaker 1: I didn't credit these preliminary injunction motions with much chance 327 00:20:34,080 --> 00:20:38,040 Speaker 1: of success, largely because it's it's very difficult to convince 328 00:20:38,040 --> 00:20:43,439 Speaker 1: a court that a temporary by its definition, a temporary 329 00:20:43,760 --> 00:20:48,359 Speaker 1: hold or moratorium for further study, is something that's final 330 00:20:48,520 --> 00:20:52,320 Speaker 1: enough for court to grab onto. But they did that 331 00:20:52,440 --> 00:20:54,760 Speaker 1: here and and the court. You can tell that the 332 00:20:54,760 --> 00:20:58,040 Speaker 1: court knows that this decision was on the edge because 333 00:20:58,560 --> 00:21:01,120 Speaker 1: you don't normally see a four you for page opinion 334 00:21:01,200 --> 00:21:05,560 Speaker 1: on a preliminary injunction motion. And the court spent a 335 00:21:05,560 --> 00:21:08,040 Speaker 1: lot of times justifying the idea that this is a 336 00:21:08,080 --> 00:21:12,000 Speaker 1: final agency action, and there's plenty of support for that, 337 00:21:12,119 --> 00:21:14,240 Speaker 1: and the court went through a full page of citation 338 00:21:14,400 --> 00:21:17,159 Speaker 1: to show that. But there's certainly supporting the other side. 339 00:21:17,359 --> 00:21:20,160 Speaker 1: So I think that this is the case where you've 340 00:21:20,200 --> 00:21:24,640 Speaker 1: got difficulty at both prongs of the preliminary injunction requirements 341 00:21:24,760 --> 00:21:27,400 Speaker 1: and it's a close call. Now, usually the close call 342 00:21:27,520 --> 00:21:32,240 Speaker 1: does go to the court, so maybe in this instance 343 00:21:32,359 --> 00:21:35,920 Speaker 1: the Fifth Circuit would agree. But I don't think that 344 00:21:36,200 --> 00:21:41,720 Speaker 1: the preliminary injunction itself is probably that impactful because this 345 00:21:41,800 --> 00:21:43,720 Speaker 1: is going to have to also play out at the 346 00:21:43,760 --> 00:21:46,399 Speaker 1: district court level on the merits part of the case, 347 00:21:47,240 --> 00:21:49,440 Speaker 1: and by the time we get through that, I fully 348 00:21:49,440 --> 00:21:51,800 Speaker 1: would expect that the bid administration would already have a 349 00:21:51,880 --> 00:21:57,000 Speaker 1: solution to this out, whether that's holding those least sales 350 00:21:57,080 --> 00:22:01,280 Speaker 1: while working on new rules or you know, going through 351 00:22:01,560 --> 00:22:04,719 Speaker 1: some other avenue. Um. I think that the timing is 352 00:22:05,080 --> 00:22:08,919 Speaker 1: it doesn't necessarily force easily sales to happen right away. 353 00:22:09,280 --> 00:22:12,400 Speaker 1: Thanks for being on the show, Brandon. That's Brandon Barnes, 354 00:22:12,520 --> 00:22:16,439 Speaker 1: Bloomberg Intelligence Senior litigation analyst. You can read more of 355 00:22:16,480 --> 00:22:18,920 Speaker 1: Brandon's analysis by going to be I Go on the 356 00:22:18,960 --> 00:22:24,119 Speaker 1: Bloomberg terminal. Pro Football Hall of Famer Shannon Sharp was 357 00:22:24,160 --> 00:22:28,840 Speaker 1: discussing the trade rumors around then Atlanta Falcon starwide receiver 358 00:22:29,000 --> 00:22:33,320 Speaker 1: Julio Jones during his Fox Sports show Undisputed, when Sharp 359 00:22:33,400 --> 00:22:36,960 Speaker 1: decided to call Jones and ask him live on the 360 00:22:37,040 --> 00:22:40,480 Speaker 1: air what we call it as well? Ask him, yes, 361 00:22:40,760 --> 00:22:48,960 Speaker 1: I do right now? Are we calling? Okay? Well, really 362 00:22:49,000 --> 00:22:52,000 Speaker 1: hope he answers here, Julio, have the guts to pick 363 00:22:52,080 --> 00:22:58,800 Speaker 1: up the phone. Yeah, all right, Julio, Lou you want 364 00:22:58,800 --> 00:23:00,920 Speaker 1: to go to the Cowboys, Julio? Or you want to 365 00:23:00,920 --> 00:23:13,320 Speaker 1: stay in Atlanta. Jones was apparently unaware that the call 366 00:23:13,520 --> 00:23:17,680 Speaker 1: and his revelations were being aired live on TV. Now 367 00:23:17,720 --> 00:23:22,320 Speaker 1: no lawsuits have been filed, but theoretically speaking, good Sharp 368 00:23:22,480 --> 00:23:27,360 Speaker 1: or Fox Sports be sued. This week, Massachusetts Supreme Judicial 369 00:23:27,440 --> 00:23:31,240 Speaker 1: Court upheld the dismissal of Summerville Mayor Joe kurt Atoni's 370 00:23:31,320 --> 00:23:35,000 Speaker 1: lawsuit against bar Stool for recording and publishing a phone 371 00:23:35,000 --> 00:23:38,439 Speaker 1: interview because of his consent. So a lot depends on 372 00:23:38,600 --> 00:23:41,240 Speaker 1: what states rules are applied in the case of a 373 00:23:41,280 --> 00:23:45,240 Speaker 1: recorded conversation. Here to discuss the legal implications of an 374 00:23:45,280 --> 00:23:49,480 Speaker 1: ambush interview is Daniel Novak, a publishing industry attorney and 375 00:23:49,640 --> 00:23:52,679 Speaker 1: chair of the New York State Bar Association Committee on 376 00:23:52,800 --> 00:23:56,800 Speaker 1: Media Law. Let's get some basics first. The rule in 377 00:23:56,920 --> 00:24:00,640 Speaker 1: most states is that only one party has to consent 378 00:24:00,760 --> 00:24:03,480 Speaker 1: to a recording. So does that basically mean you can 379 00:24:03,560 --> 00:24:07,440 Speaker 1: tape any conversation if you're in one of those states. Yes, 380 00:24:07,520 --> 00:24:10,439 Speaker 1: and no. If you are in the majority of states 381 00:24:10,440 --> 00:24:12,840 Speaker 1: that we call one party consent, as long as you 382 00:24:12,880 --> 00:24:16,680 Speaker 1: are a party to the conversation, you should be okay. 383 00:24:16,720 --> 00:24:18,879 Speaker 1: But where it gets fuzzy can be where you're not 384 00:24:18,960 --> 00:24:22,200 Speaker 1: a party, and so being one party or two party 385 00:24:22,240 --> 00:24:25,400 Speaker 1: consent states are sort of irrelevant if you're not yourself 386 00:24:25,520 --> 00:24:29,320 Speaker 1: the person that's engaged in the conversation. Now, most jurisdiction 387 00:24:29,320 --> 00:24:31,720 Speaker 1: would just look at whether or not the people that 388 00:24:31,760 --> 00:24:35,280 Speaker 1: were having the conversation had a realistic expectation that it 389 00:24:35,320 --> 00:24:37,719 Speaker 1: would be between them. And so if you're sitting at 390 00:24:37,720 --> 00:24:40,879 Speaker 1: a restaurant, you know, crowd a restaurant next to a 391 00:24:40,960 --> 00:24:43,439 Speaker 1: couple and they're talking and you know everything is with 392 00:24:43,480 --> 00:24:46,520 Speaker 1: an ear shot, it could be okay to record potentially 393 00:24:46,560 --> 00:24:48,800 Speaker 1: because you would say that anyone in that room could 394 00:24:48,800 --> 00:24:51,320 Speaker 1: have heard that. So it gets a little tricky when 395 00:24:51,359 --> 00:24:53,720 Speaker 1: you're not a party, but if you are, then it 396 00:24:53,800 --> 00:24:58,600 Speaker 1: becomes relatively straightforward. But on disputedy is taped in California, 397 00:24:58,800 --> 00:25:01,720 Speaker 1: which is a two party consent state, tell us about 398 00:25:01,760 --> 00:25:05,719 Speaker 1: the law there. So California, despite being very media friendly 399 00:25:05,760 --> 00:25:08,240 Speaker 1: in many respects, they have one of the best what 400 00:25:08,320 --> 00:25:11,600 Speaker 1: we call anti flap laws that discourages plaintiffs from bringing 401 00:25:11,640 --> 00:25:15,440 Speaker 1: baseless defamation suits. They happen to have a more restrictive 402 00:25:15,720 --> 00:25:18,840 Speaker 1: recording statute, and so California is one of those two 403 00:25:18,880 --> 00:25:21,320 Speaker 1: parties states. I think there's about maybe a dozen or 404 00:25:21,359 --> 00:25:24,480 Speaker 1: so of them, and so in California, what jan and 405 00:25:24,520 --> 00:25:28,880 Speaker 1: Sharp did has criminal and civil ramifications. However, the call 406 00:25:29,000 --> 00:25:31,440 Speaker 1: presumably went to Georgia. I don't actually know where really 407 00:25:31,520 --> 00:25:33,560 Speaker 1: I was at the moment, but for the sake of argument, 408 00:25:33,760 --> 00:25:36,399 Speaker 1: he was based there at the time. And so it 409 00:25:36,520 --> 00:25:39,399 Speaker 1: created a clash of laws, because when you look at 410 00:25:39,520 --> 00:25:42,560 Speaker 1: two different parties, it's not always a given the law 411 00:25:42,640 --> 00:25:47,439 Speaker 1: of which state would apply. Logically, it seems like the 412 00:25:47,560 --> 00:25:50,520 Speaker 1: law of the state where the conversation is being recorded 413 00:25:50,520 --> 00:25:53,440 Speaker 1: should apply. Well, it's tricky because you would say it's 414 00:25:53,440 --> 00:25:56,119 Speaker 1: being recorded in California. Right. The arguments, by the way, 415 00:25:56,160 --> 00:25:59,320 Speaker 1: are persuaded on both sides. One side of it would be, well, look, 416 00:25:59,560 --> 00:26:03,080 Speaker 1: why are protecting someone Jones and this instance whose own 417 00:26:03,119 --> 00:26:05,280 Speaker 1: state says this is sign have at it, you know, 418 00:26:05,400 --> 00:26:08,160 Speaker 1: record if you wish at the behest of the state, 419 00:26:08,320 --> 00:26:12,120 Speaker 1: you know California that has no interest in protecting Georgia residents. 420 00:26:12,119 --> 00:26:15,199 Speaker 1: On the other hand, California could have an interest in saying, well, 421 00:26:15,240 --> 00:26:17,760 Speaker 1: look we want to discourage this type of behavior on 422 00:26:17,800 --> 00:26:21,560 Speaker 1: the recorder side, right, it's not just about protecting Georgia residents, 423 00:26:21,680 --> 00:26:24,560 Speaker 1: is actually just telling California residents don't do this. And 424 00:26:24,600 --> 00:26:26,840 Speaker 1: one of the factors that course have looked at as well, 425 00:26:27,280 --> 00:26:30,760 Speaker 1: how feasible is it for people to sort of moderate 426 00:26:30,880 --> 00:26:34,040 Speaker 1: their behavior based on the location of the person they're 427 00:26:34,080 --> 00:26:36,720 Speaker 1: either calling or being called by. You could be calling 428 00:26:36,760 --> 00:26:38,880 Speaker 1: someone to record them. You could similarly decide that when 429 00:26:38,880 --> 00:26:41,440 Speaker 1: someone calls you to hit the record. And so there 430 00:26:41,520 --> 00:26:45,639 Speaker 1: was a case recently where a Georgia company was calling 431 00:26:45,680 --> 00:26:49,119 Speaker 1: California residents and so not only did California have an 432 00:26:49,119 --> 00:26:53,040 Speaker 1: interest in protecting their residence from being recorded, but the 433 00:26:53,119 --> 00:26:56,399 Speaker 1: court found that it wouldn't be too untenable for a 434 00:26:56,400 --> 00:26:59,400 Speaker 1: Georgia company to know who they're calling. Most people know 435 00:26:59,560 --> 00:27:03,000 Speaker 1: who they're calling, and so it wouldn't be unreasonable for 436 00:27:03,119 --> 00:27:05,520 Speaker 1: a Georgia company to say, well, look, this calls a 437 00:27:05,560 --> 00:27:08,040 Speaker 1: California resident. We need to alert them that the call 438 00:27:08,160 --> 00:27:09,520 Speaker 1: is going to be recorded. If they don't like that, 439 00:27:09,600 --> 00:27:12,080 Speaker 1: they can hang up the phone. So in that circumstance, 440 00:27:12,160 --> 00:27:14,480 Speaker 1: the equities all sort of lined up. But you could 441 00:27:14,520 --> 00:27:17,760 Speaker 1: see how when it's reversed and it's a California resident 442 00:27:17,800 --> 00:27:20,679 Speaker 1: calling a Georgia resident, it gets a little trickier because 443 00:27:20,840 --> 00:27:24,280 Speaker 1: it again it becomes about discouraging. And here in this instance, yes, 444 00:27:24,400 --> 00:27:28,159 Speaker 1: Shannon Sharp probably could know that his target within Georgia's 445 00:27:28,240 --> 00:27:30,560 Speaker 1: but not everybody is going to have the presence of 446 00:27:30,560 --> 00:27:33,240 Speaker 1: mind to do that quick mental calculus of where they are. 447 00:27:33,320 --> 00:27:35,640 Speaker 1: And so the court in California might conclude, we don't 448 00:27:35,640 --> 00:27:39,280 Speaker 1: want Shannon Sharp to have to consult, you know, Alexis 449 00:27:39,320 --> 00:27:43,560 Speaker 1: Search to figure out what Julio Jones residences or ask him, hey, 450 00:27:43,600 --> 00:27:46,719 Speaker 1: are you on vacation right now? Maybe cross state lines 451 00:27:46,880 --> 00:27:49,080 Speaker 1: that sort of thing. You know, it's the better policy 452 00:27:49,160 --> 00:27:51,800 Speaker 1: is probably just a discourage it outright, and so, like 453 00:27:51,880 --> 00:27:54,440 Speaker 1: I said, a court could go either way on that question. 454 00:27:55,000 --> 00:27:57,399 Speaker 1: Does there have to be an expectation of privacy? Because 455 00:27:57,400 --> 00:27:59,840 Speaker 1: going back to what you said in the beginning about 456 00:28:00,040 --> 00:28:03,399 Speaker 1: let's say a conversation in a restaurant. Here, you're a 457 00:28:03,440 --> 00:28:07,920 Speaker 1: football star talking to a guy who does a sports 458 00:28:07,960 --> 00:28:11,240 Speaker 1: show on TV. I mean, do you have any expectation 459 00:28:11,280 --> 00:28:14,200 Speaker 1: that what you're saying is not going to be recorded? Yeah, 460 00:28:14,200 --> 00:28:16,680 Speaker 1: and it feels like splitting hairs, But but he does. 461 00:28:17,000 --> 00:28:20,080 Speaker 1: He has an expectation not in the content of his speech, 462 00:28:20,440 --> 00:28:23,840 Speaker 1: but literally in the sound and reproduction of it. And 463 00:28:23,880 --> 00:28:27,240 Speaker 1: so it sounds funny that that would be what the 464 00:28:27,280 --> 00:28:30,760 Speaker 1: tipping point is. But California law does not want people 465 00:28:30,880 --> 00:28:34,960 Speaker 1: using electronic means to record people. And so rather than 466 00:28:35,000 --> 00:28:39,280 Speaker 1: trying to have an analysis that invites all these complicated 467 00:28:39,320 --> 00:28:42,840 Speaker 1: factors like what was the objective expectation of both sides, 468 00:28:42,880 --> 00:28:46,480 Speaker 1: what was their subjective beliefs, etcetera, California has created this 469 00:28:46,560 --> 00:28:49,240 Speaker 1: bright mind rule, which is, if you want to preserve 470 00:28:49,400 --> 00:28:52,400 Speaker 1: this conversation for posterity, you need to ask the other 471 00:28:52,440 --> 00:28:54,680 Speaker 1: side or let them know, and then again they can 472 00:28:54,680 --> 00:28:56,440 Speaker 1: decide what don't they want to continue? And that's why 473 00:28:56,800 --> 00:28:59,440 Speaker 1: you know, when you and I receive calls that are automated, 474 00:28:59,440 --> 00:29:01,920 Speaker 1: if it says this call will be recorded, and that's 475 00:29:01,920 --> 00:29:04,040 Speaker 1: your cue. If you don't like that, hang up the phone. 476 00:29:04,520 --> 00:29:08,040 Speaker 1: What about Fox Sports because it's the deep pocket here. 477 00:29:08,120 --> 00:29:10,880 Speaker 1: If it were sued, do the same factors come into 478 00:29:10,880 --> 00:29:14,640 Speaker 1: play or are there other factors? So Fox Sports is 479 00:29:14,640 --> 00:29:18,560 Speaker 1: an interesting sort of extension of this because in the 480 00:29:18,640 --> 00:29:23,400 Speaker 1: vast majority of recording and wire tap cases there's an intermediary. 481 00:29:23,480 --> 00:29:25,719 Speaker 1: So if Shanna Sharp was just the next player who 482 00:29:25,800 --> 00:29:29,280 Speaker 1: had recorded his friends conversation and handed it to Fox Sports, 483 00:29:29,560 --> 00:29:32,440 Speaker 1: Fox Sports will be protected under the Supreme Court ruling 484 00:29:32,480 --> 00:29:35,600 Speaker 1: in a case called part Nicki versus Bopper, And in 485 00:29:35,680 --> 00:29:38,720 Speaker 1: that case they essentially said that if your hands aren't dirty, 486 00:29:38,760 --> 00:29:41,040 Speaker 1: that you're not going to be responsible. And that's just 487 00:29:41,200 --> 00:29:43,240 Speaker 1: designed to give them the news media some breathing room 488 00:29:43,240 --> 00:29:46,400 Speaker 1: because oftentimes the most important material of the public interest 489 00:29:46,720 --> 00:29:50,320 Speaker 1: in the chain of title, there's been something that's gone 490 00:29:50,360 --> 00:29:53,880 Speaker 1: wrong in terms of legality, and so you can't police 491 00:29:53,920 --> 00:29:56,920 Speaker 1: the media for accurate reporting on a stolen you know, 492 00:29:57,200 --> 00:30:00,400 Speaker 1: or recorded material. You know. That's all of leak sporting, 493 00:30:00,440 --> 00:30:04,240 Speaker 1: really right, and so here we have a difference because 494 00:30:04,800 --> 00:30:07,640 Speaker 1: Fox Sports was live on the air, and there's the 495 00:30:07,720 --> 00:30:11,160 Speaker 1: litional conduct. They're the ones that are hitting on one sense, 496 00:30:11,160 --> 00:30:13,640 Speaker 1: Stantons hitting record on his phone or he's not recording 497 00:30:13,680 --> 00:30:16,200 Speaker 1: it really, he's just talking out loud on speaker phone 498 00:30:16,200 --> 00:30:18,600 Speaker 1: and you can hear how it Roy, it's really the 499 00:30:18,640 --> 00:30:23,000 Speaker 1: recorder is actually Fox Sports, who has their cameras trained 500 00:30:23,000 --> 00:30:26,800 Speaker 1: on on Shanna. He's miked up for audio. Now, you 501 00:30:26,880 --> 00:30:30,040 Speaker 1: could argue that again this is what's been reported. They 502 00:30:30,080 --> 00:30:32,200 Speaker 1: weren't aware that you planned to do this, and so 503 00:30:32,320 --> 00:30:34,680 Speaker 1: maybe you can find the room in your heart to 504 00:30:35,120 --> 00:30:37,360 Speaker 1: sort of forgive them that this was like an emerging 505 00:30:37,440 --> 00:30:40,480 Speaker 1: situation and and they didn't have the presence of mind 506 00:30:40,600 --> 00:30:43,320 Speaker 1: to yell cut or you know, take it to a 507 00:30:43,360 --> 00:30:46,280 Speaker 1: commercial or something. But the call lasted at about a minute, 508 00:30:46,400 --> 00:30:49,520 Speaker 1: and so at certain points you're all in. And so 509 00:30:49,920 --> 00:30:52,320 Speaker 1: that the bart Nikki president and Maybew does not really 510 00:30:52,360 --> 00:30:57,040 Speaker 1: protect them because again it's there's no transfer to a middleman. 511 00:30:58,000 --> 00:31:01,680 Speaker 1: The live nature of these shows makes it difficult. Yeah, 512 00:31:01,720 --> 00:31:04,040 Speaker 1: and I think it's just a consequence of the formats. 513 00:31:04,040 --> 00:31:06,160 Speaker 1: But they shows, you know, they can be taped live, 514 00:31:06,520 --> 00:31:10,080 Speaker 1: they don't necessarily involve a lot of careful vetting of material. 515 00:31:10,280 --> 00:31:12,920 Speaker 1: You know, if this was a news program as opposed 516 00:31:12,960 --> 00:31:15,880 Speaker 1: to commentary, there's probably a lawyer in the building. You 517 00:31:15,880 --> 00:31:18,160 Speaker 1: can say, hey, can I run this idea by you? 518 00:31:18,200 --> 00:31:20,360 Speaker 1: And they'll say you need to get consent. And so, 519 00:31:20,520 --> 00:31:24,720 Speaker 1: because this was not in their wheelhouse and Shannon Sharpe 520 00:31:24,840 --> 00:31:27,440 Speaker 1: was probably going off book, I think that they just 521 00:31:27,440 --> 00:31:29,680 Speaker 1: didn't have the presence of mind. I would find on 522 00:31:29,800 --> 00:31:31,800 Speaker 1: like that they had a lawyer standing there, you know, 523 00:31:32,000 --> 00:31:33,920 Speaker 1: with like the red button, the way that you might 524 00:31:34,480 --> 00:31:37,720 Speaker 1: in other circumstances like reality television where you think something 525 00:31:37,760 --> 00:31:39,440 Speaker 1: could go wrong and you need to be able to 526 00:31:39,560 --> 00:31:41,640 Speaker 1: be on a tent second delay or something like that. Now, 527 00:31:41,680 --> 00:31:43,880 Speaker 1: I don't know what procedures they have in place. They 528 00:31:43,880 --> 00:31:45,680 Speaker 1: could be on the delay. There could be all these 529 00:31:45,680 --> 00:31:48,000 Speaker 1: ways that it could have been slowed down. And tell 530 00:31:48,080 --> 00:31:51,360 Speaker 1: us a little about the specifics of the California law. Here. 531 00:31:51,840 --> 00:31:55,200 Speaker 1: It comes in under the specific California Anti Recording Statute. 532 00:31:55,560 --> 00:31:58,840 Speaker 1: And I should say that it's not terribly renumerative. The 533 00:31:59,000 --> 00:32:01,800 Speaker 1: statute I think said five tho dollars per a sense, 534 00:32:02,360 --> 00:32:05,760 Speaker 1: or I think triple your actual damages and just like 535 00:32:05,840 --> 00:32:09,560 Speaker 1: in defamation of privacy, it's very hard to assign a 536 00:32:09,640 --> 00:32:13,080 Speaker 1: dollar figure too damages, and so the only reason I 537 00:32:13,160 --> 00:32:16,880 Speaker 1: could see Julio Jones bringing a claim is just on principle, 538 00:32:16,960 --> 00:32:19,080 Speaker 1: and I think he's already been sort of vindicated. In 539 00:32:19,120 --> 00:32:21,360 Speaker 1: the public side, people were upset that Sharp did this, 540 00:32:21,520 --> 00:32:25,080 Speaker 1: and so it's not a high upside play. The actual 541 00:32:25,600 --> 00:32:28,719 Speaker 1: legal side of it had some complexity, you know, like 542 00:32:28,760 --> 00:32:32,200 Speaker 1: we discussed it's California law. Really that's why here. But 543 00:32:32,480 --> 00:32:36,640 Speaker 1: you know people have sued. Bar Stool Sports was sued 544 00:32:36,720 --> 00:32:39,840 Speaker 1: for recording. They won their case. It was it had 545 00:32:39,880 --> 00:32:42,480 Speaker 1: a different fact pattern, but it wouldn't be the first 546 00:32:42,520 --> 00:32:45,240 Speaker 1: time that somebody felt put off by being reported and 547 00:32:45,280 --> 00:32:48,160 Speaker 1: decided to sue. Thanks for being on the show. That's 548 00:32:48,240 --> 00:32:51,680 Speaker 1: Daniel Novak, publishing industry attorney, and I know that ten 549 00:32:51,760 --> 00:32:54,520 Speaker 1: v Val Sangakar is a co writer of your article 550 00:32:54,560 --> 00:32:56,600 Speaker 1: on this issue. And that's it for this edition of 551 00:32:56,600 --> 00:32:59,120 Speaker 1: the Bloomberg Law Show. Remember you can always at the 552 00:32:59,200 --> 00:33:01,920 Speaker 1: latest legal news is on our Bloomberg Law Podcast. You 553 00:33:01,960 --> 00:33:05,960 Speaker 1: can find them on Apple Podcasts, Spotify and at www 554 00:33:06,200 --> 00:33:10,680 Speaker 1: dot Bloomberg dot com, slash podcast Slash Law. I'm June Boso, 555 00:33:10,800 --> 00:33:12,080 Speaker 1: and you're listening to Bloomberg