Speaker 1: This is Bloomberg Law with June Brussel from Bloomberg Radio.
Speaker 1: In a high profile clash of religious rights and gay
Speaker 1: rights at the Supreme Court, religious rights one out the
Speaker 1: courts sided with a Catholic foster care agency that won't
Speaker 1: place children with same sex couples because of its religious beliefs.
Speaker 1: In a unanimous decision, the Court ruled that Philadelphia violated
Speaker 1: the Constitution when it excluded the agency for the city's
Speaker 1: foster care program. During oral arguments, some of the conservative
Speaker 1: Justice Is question Philadelphia's policy, while others like Justice Is
Speaker 1: Samuel Alito and Brett Kavanaugh were upfront in their skepticism.
Speaker 1: It's not about ensuring that same sex couples in Philadelphia
Speaker 1: have the opportunity to be foster parents. It's the fact
Speaker 1: that the city can't stand the message and Catholic Social
Speaker 1: Services and the archdioces are sending by continuing to adhere
Speaker 1: to the old fashioned view about marriage. And what I
Speaker 1: fear here is that the absolutist and extreme position that
Speaker 1: you're articulating would require us to go back on the
Speaker 1: promise of respect for religious believers. Joining me as constitutional
Speaker 1: law professor Steve Sanders of Indiana University's Mara School of Law.
Speaker 1: Some people expected to split along ideological lines because of
Speaker 1: religious rights versus gay rights. Were you surprised by the
Speaker 1: unanimous ruling? Well, I wasn't surprised by the unanimity of
Speaker 1: the ruling once I read the opinion and realized just
Speaker 1: really how narrow this decision is. It really does not
Speaker 1: break any new ground. It is more or less a
Speaker 1: straightforward application of existing Supreme Court precedent. And frankly, if
Speaker 1: the City of Philadelphia decides to make a fairly minor
Speaker 1: modification of its policy, it's possible that it could go
Speaker 1: back to not doing business with Catholic social services. So
Speaker 1: the opinion seems to have been crafted to be as
Speaker 1: narrow as possible while being faithful to the courts precedents.
Speaker 1: That I think explains why it got the support of
Speaker 1: Justice Bryer, Justice so to Mayor and especially Justice Kagan,
Speaker 1: who I think would not have joined an opinion that
Speaker 1: would have resulted in what she saw was an inappropriate
Speaker 1: expansion of the rights of religious organizations. Like the Obamacare decision,
Speaker 1: This case was argued way back in November. Do you
Speaker 1: think this decision took so long to come down because
Speaker 1: the justices, or perhaps Chief Justice Roberts, was lobbying to
Speaker 1: have an unanimous opinion. I suspect the main thing that
Speaker 1: caused it to take so long to come down was
Speaker 1: the fact that Justice Alito wrote a treatise. You know,
Speaker 1: Justice Alito's concurrence is by far the long gust of
Speaker 1: all the opinions. It was joined by Justice Gore, such
Speaker 1: Injustice Thomas. Justice Alito makes a full throated argument in
Speaker 1: favor of a radical, really revolution in the Supreme Court's
Speaker 1: jurisprudence of the free exercise clause, and that would be
Speaker 1: to get rid of a thirty year old precedent called
Speaker 1: employment Division versus Smith. That was the larger question on
Speaker 1: the table in this case that the Court theoretically could
Speaker 1: have reached. The opinion of the Court said, you know,
Speaker 1: we don't need to reconsider a basic precedent in order
Speaker 1: to resolve this particular case. Is they's a Justice Alito, really,
Speaker 1: you know, just sort of wrote a brief in favor
Speaker 1: of overturning employment of Division versus Smith, something that even
Speaker 1: Justice Barrett basically said she wasn't interested in doing in
Speaker 1: this case. So Smith is a decision written by conservative
Speaker 1: icon Justice Anti and Scalia. That's been the target of
Speaker 1: religious rights groups recently. Why so, that's correct because employee
Speaker 1: division versus Smith basically said, if a law is neutral
Speaker 1: and if it's generally applicable, if it's just a law
Speaker 1: that sort of everybody has to obey, it doesn't target
Speaker 1: religion in one way or another, then even if that
Speaker 1: law impinges on your religious practice, basically too bad. A
Speaker 1: religious believer is not a law unto himself or herself.
Speaker 1: Justice Scalia rode, And so, if there is a truly
Speaker 1: neutral and generally applicable, let's say, gay rights law, the
Speaker 1: fact that a business owner or a social service agency
Speaker 1: believes that complying with that law violates its religious liberty
Speaker 1: is not good enough to kick it up to strict
Speaker 1: scrutiny to demand more of the government to justify that law.
Speaker 1: That's what Justice Alito and Justice Thomas and Justice Gorse
Speaker 1: would like to change. They would like to make it
Speaker 1: easier for religious believers to challenge any law that they
Speaker 1: believe in hinges on their religious exercise. What the court
Speaker 1: found in this case, in the Fulton case, was that
Speaker 1: the law was not actually generally applicable because it allowed
Speaker 1: for the possibility of exceptions to the non discrimination policy,
Speaker 1: and the fact the city wasn't willing to get Catholic
Speaker 1: Social Services an exception meant that Catholic Social Services wasn't
Speaker 1: being treated equally, So that did kick the level of
Speaker 1: scrutiny up to strict scrutiny because religion was being treated
Speaker 1: in a disadvantaged way. Basically, all the City of Philadelphia
Speaker 1: has to do is get rid of that provision that
Speaker 1: indicates that the Social Services administration can make exceptions. If
Speaker 1: it makes clear the non discrimination provision applies in a
Speaker 1: blanket way without any exceptions, then Catholic Social Service agency
Speaker 1: will have to choose whether to be bound by that
Speaker 1: or whether to not do business with the city. That's
Speaker 1: assuming the city decides to go ahead and do that.
Speaker 1: How political pressures and other things made forced the city
Speaker 1: to just sort of keep the status quo. As we
Speaker 1: discussed before, this sounds a lot like the Masterpiece Cake
Speaker 1: Shop case where a baker refused to make a wedding
Speaker 1: cake for same sex couple. There's Supreme Court there refused
Speaker 1: to decide the central issue. Did this case clear that
Speaker 1: up at all or is it still nebulous. It really didn't.
Speaker 1: This case is a little bit different because Masterpiece Cake Shop.
Speaker 1: In that case, the baker, recognizing that this old precedent
Speaker 1: of employment Division versus Smith made it difficult for him
Speaker 1: to succeed under the free exercise clause, try to free
Speaker 1: speech argument basically saying that his cakes represented expressive speech.
Speaker 1: That was quite a novel argument, and as you say,
Speaker 1: the court essentially didn't reach that. The Court decided it
Speaker 1: on a much narrower basis that this baker had been
Speaker 1: sort of mistreated during the adjudication process, that his religion
Speaker 1: had been disparaged, and government doesn't get to do that.
Speaker 1: But it dodged making a statement about the larger question
Speaker 1: of free speech law when it involves religious speech. This
Speaker 1: case is similar in fact, Justice Alito's opinion sort of
Speaker 1: analogized at Masterpiece, and that this decision Fulton was focused
Speaker 1: on the free exercise clause, not the free speech part
Speaker 1: of the First Amendment. It's different than Masterpiece in that way,
Speaker 1: but it's similar in the sense that this is really
Speaker 1: a decision that only applies to the specific circumstances involving
Speaker 1: this agency and the City of Philadelphia. It doesn't break
Speaker 1: any new ground. It doesn't expand the meaning or the
Speaker 1: scope of religious liberty beyond what the Supreme Court has
Speaker 1: already said in its precedence. Some are calling this a
Speaker 1: setback for gay rights. Do you agree? I think that's
Speaker 1: probably an overstatement. So one way of viewing the situation
Speaker 1: is that cities like Philadelphia and other government agencies should
Speaker 1: take a hard line and say any time any social
Speaker 1: services provider, any business, any private organization refuses to respect
Speaker 1: the rights of gay people, they must give up their
Speaker 1: religious beliefs and they must tow the line and and
Speaker 1: honor the government's nondiscrimination law. One thing that may have
Speaker 1: been going on in the background here that may have
Speaker 1: also been been persuasive to the justices is um no
Speaker 1: gay couple in Philadelphia had ever been turned away from
Speaker 1: the foster system. The way it worked was if Catholic
Speaker 1: Social Services decided they couldn't certify a married, same sex
Speaker 1: couple to be a foster parent, they simply referred the
Speaker 1: couple to one of twenty some other agencies in the
Speaker 1: city of Philadelphia that did the same work for the city.
Speaker 1: So I think what we see here is maybe an
Speaker 1: argument that look, no gay couple was actually discriminated against.
Speaker 1: Probably no same sex couple would ever be denied the
Speaker 1: right to foster a child. Um, there might just be
Speaker 1: a slight delay because they'd go to a different agency.
Speaker 1: But that allows Catholic Social Services to stand by its
Speaker 1: religious principles. So I guess I would disagree that this
Speaker 1: is a big, meaningful setback for gay rights. If you
Speaker 1: are subscribing to a sort of absolutist view of non
Speaker 1: discrimination laws, then maybe you don't like this decision. As
Speaker 1: a practical matter, this decision probably represents the kind of
Speaker 1: accommodation that even some liberal scholars have been calling for
Speaker 1: that allows religious organizations to be faithful to their principles
Speaker 1: without doing any actual practical harm to the ability of
Speaker 1: same sex couples to function in society and to be
Speaker 1: treated equally. But this is another in a long line
Speaker 1: of victories for religious groups of the Supreme Court. This
Speaker 1: is a court that has taken a very sympathetic and
Speaker 1: expansive view of religion. Has protected religion, whether it's a
Speaker 1: case challenging something as an establishment of religion, or religious
Speaker 1: organizations or religious people saying that a law impinges on
Speaker 1: their free exercise rights. I think your impression is not wrong.
Speaker 1: The law has evolved in recent years in a way
Speaker 1: that is increasingly um sympathetic to religion, increasingly insists that
Speaker 1: religion be treated the same as other kinds of functions
Speaker 1: and not be disadvantaged in some way. It's entirely likely
Speaker 1: that more cases like this are going to keep coming
Speaker 1: to the Supreme Court. This decision didn't break any new
Speaker 1: ground really in advancing the religious liberty rights of religious believers.
Speaker 1: It's simply found a way to fit this situation into
Speaker 1: the Court's existing law, which says religion can't be singled
Speaker 1: out for disadvantageous treatment, which is what the Court thought
Speaker 1: was going on here. But you know that this opinion
Speaker 1: also doesn't signal that the Court is closing the door
Speaker 1: to other theories and other claims of religious discrimination. So
Speaker 1: the decision announced the same day the Obamacare case is
Speaker 1: sort of largely seen as the Court saying, look, enough
Speaker 1: of this, We're just done with the challenges to Obamacare.
Speaker 1: This decision more or less maintains a sort of status quo.
Speaker 1: Thanks Steve. That's Steve Sanders of Indiana University's Mors School
Speaker 1: of Law. The effort to lift The Biden administration's moratorium
Speaker 1: on federal lease sales got a surprise win in federal
Speaker 1: district court. On Tuesday, a federal judge in Louisiana granted
Speaker 1: a preliminary injunction lifting the administration's moratorium on new lease
Speaker 1: sales for oil and gas development on federal lands. Joining
Speaker 1: me is Brandon Barnes. Joining me is Brandon Barnes, Bloomberg
Speaker 1: Intelligence senior litigation analyst. So Brandon tell us about this decision.
Speaker 1: We had an interesting decision coming out of the Louisiana
Speaker 1: Federal court this week, and the judge put a preliminary
Speaker 1: in junction in place, granting a motion request from thirteen
Speaker 1: different states that had basically asked the court to put
Speaker 1: on hold the hold that the President Biden's administration put
Speaker 1: in place with respect to the federal government holding oil
Speaker 1: and gas lease sales, which is basically property that the
Speaker 1: federal government owns or holds that they then leased back
Speaker 1: out for oil and gas development like Gulf of Mexico
Speaker 1: or cocaine lead in Alaska, or on shore for someam
Speaker 1: areas like the Permian Basin in New Mexico. The judge
Speaker 1: decides there'd be irreparable harm. How so isn't it just
Speaker 1: money involved? Well, Uh, economic harm can be one of
Speaker 1: the factors that goes into the irreparable harm calculus for
Speaker 1: preliminary junctions. We've seen it in other cases here. Since
Speaker 1: you had the Stewards being the thirteen s case, the
Speaker 1: plaintiffs for these thirteen states, part of their standing, part
Speaker 1: of their ability to bring this claim revolved around the
Speaker 1: fact that they garner a significant amount of money from
Speaker 1: these federal oil and gas leases. They have a there's
Speaker 1: a sharing agreement for some of that revenue, there's royalties
Speaker 1: involved for them, so it's a significant part of their
Speaker 1: business at the state level in their budgeting process. But
Speaker 1: also the court took a new account of a fair
Speaker 1: amount of you know this idea that there would be
Speaker 1: job losses at some point and that would impact the
Speaker 1: states as well. So what is the Biden administration doing? Now?
Speaker 1: This isn't about saying no, no more leases here. This
Speaker 1: is about wait and see, let's let's figure this out. Yeah,
Speaker 1: it's been a pretty common tactic for presidents over the years.
Speaker 1: Most presidents have done it with different programs where and
Speaker 1: politically it's it's you know, a smart middle ground, because
Speaker 1: what you do is you come in and you say,
Speaker 1: wait a second, we need to take a look. We
Speaker 1: need to take a look at this. Do our study,
Speaker 1: check it out. Make sure that you know we're appropriately
Speaker 1: in this case protecting all the people. Were getting the
Speaker 1: amount of money that the people deserve out of these
Speaker 1: private companies who were doing this development, and so we'll
Speaker 1: do a review. The review process has been going on
Speaker 1: since essentially the decuative Order came out in January this year,
Speaker 1: and it doesn't really have a set end time, and
Speaker 1: I think that's part of the problem. Not explicitly, but
Speaker 1: certainly the oil and gas companies and the States are
Speaker 1: looking ahead and thinking, well, that's going to present a
Speaker 1: major challenge later on once the inventory starts to draw
Speaker 1: down in terms of new leases and new properties. But
Speaker 1: right now, they haven't suffered any harm at this point.
Speaker 1: You wouldn't think so from the company perspective. A lot
Speaker 1: of the companies opted to start to bulk up on
Speaker 1: the leases and permits before the Biden administration came in,
Speaker 1: especially towards the end of last year. As you know,
Speaker 1: President Biden was making his way around the campaign trail
Speaker 1: and making promises that we were going to put a
Speaker 1: moratorium in place or take another look at this, especially
Speaker 1: with respect to the horizontal drilling and fracking. So there's
Speaker 1: a backlog. I think that the government in their similar
Speaker 1: filings reported that the backlog is seventy permits to drill,
Speaker 1: not just leases, but actually approved permits to drill. Now
Speaker 1: that's not abnormal given these programs that the drillers are
Speaker 1: putting in place last for a certain period of time,
Speaker 1: because you need to have a good pipeline of wells
Speaker 1: to drill so that as your production declines on your
Speaker 1: current wells, you have the other ones coming online, particularly
Speaker 1: for horizontal drilling, where you can extend those laterals further
Speaker 1: into contiguous properties that maybe you didn't have before, and
Speaker 1: that helps sort of smooth out the economics of drilling
Speaker 1: in a certain area. The royalty rates for drilling have
Speaker 1: been the same for a century, so the Biden administration
Speaker 1: might think about raising them. That's certainly on the table,
Speaker 1: I think, particularly Interior has made some of those statements.
Speaker 1: That's an easy middle path to discuss what's going on here.
Speaker 1: You know, the other ideas that maybe they need to
Speaker 1: tighten up from the environmental review process they're doing for
Speaker 1: these is they're pretty boilerplate, and they've been hammered in
Speaker 1: the courts recently in a couple of different cases around
Speaker 1: prior leases last year, and so the ideas maybe they
Speaker 1: might try to tighten up on climate change analysis contribution
Speaker 1: of greenhouse gasses from from these activities in addition to
Speaker 1: looking at the royalties. But the judge based it on
Speaker 1: that the Biden administration needs congressional approval to stop and
Speaker 1: think about this. That's right. So the real crux of
Speaker 1: the prelimary injunction opinion revolved around the fact that the
Speaker 1: Outer Continental Shelf Act, which is what essentially allows the
Speaker 1: federal government to run these offshore acreage s lease sales,
Speaker 1: and the Mineral Leasing Act, which is the onshore version
Speaker 1: of that, both of them have specific statutory requirements that, Okay,
Speaker 1: for Outer Continental Shelf Act, you have to do a
Speaker 1: five year plan. That five year plan lays out exactly
Speaker 1: how many lease sales you're going to have. Once that
Speaker 1: is a final rule from Interior, then you run those leases.
Speaker 1: And then Mineral Leasing Act similarly says you have to
Speaker 1: run at least quarterly lease sales and every year and
Speaker 1: and go forward in that way. The allegation which the
Speaker 1: court grabbed onto was, you know, the Biden administration, as
Speaker 1: the president, the executive branch doesn't have the power to
Speaker 1: come in and say we're stopping that because those are
Speaker 1: coming out of the legislative branch. That would be Congress,
Speaker 1: who has the power to do that and therefore put
Speaker 1: the pulinary injunction in place. Now, so this is a
Speaker 1: judge in Louisiana issuing a decision that covers the entire
Speaker 1: United States and nationwide injunction from Louisiana. That's right, you know,
Speaker 1: it's um as justice courts such as called them cosmic
Speaker 1: injunctions because they apply to the entire universe. It's been
Speaker 1: a practice that got a lot more attention under President
Speaker 1: Trump's administration, particularly revolving around to the immigration changes that
Speaker 1: he was trying to put in place, different policies at
Speaker 1: the border, and the use of them has increased over time.
Speaker 1: The ideas there's that district court, which is your lowest
Speaker 1: federal court, putting something in place that impacts the entire country.
Speaker 1: It's an interesting one. I think at a certain point,
Speaker 1: you know, you're just reading long of your articles because
Speaker 1: it becomes academic. In practice, these are allowed, and you
Speaker 1: can have competing ones because there's a sort of a
Speaker 1: coequal jurisdiction across different district courts, and only up until
Speaker 1: such time as you have a more supreme court, which
Speaker 1: would be like an Hills Court for the next level
Speaker 1: of obviously the U. S. Supreme Court making a different
Speaker 1: decision or confirming that decision. Do you then get into
Speaker 1: a place where you might have multiple jurisdictions agreeing. So
Speaker 1: it's allowed. Uh. Some people don't like it. Others look
Speaker 1: at it more as as a legal academic issue that
Speaker 1: can be discussed at, you know, in ivory toilers. So
Speaker 1: either way, we have an injunction in place, and whatever
Speaker 1: happens in other courts, which there's another court considering the
Speaker 1: same issue in Wyoming right now, it doesn't really matter
Speaker 1: until we get to the next level. So the Interior
Speaker 1: Department said, we're reviewing the judge's opinion and will comply
Speaker 1: with the decision. Does that mean they will not appeal? Uh?
Speaker 1: I doubt that. I think that they will appeal. Certainly
Speaker 1: they're people who would be happy to appeal for them
Speaker 1: with an interest in this. As there were multiple interveneers
Speaker 1: at the district court level. From the environmental interest side,
Speaker 1: I would expect them to appeal. You want to preserve
Speaker 1: your rights going forward anyway. But in one sense, you
Speaker 1: know you're appealing a preliminary injunction, so the case is
Speaker 1: still alive at the district court level anyway, so you
Speaker 1: can do it pretty quickly. But you know, they do
Speaker 1: have a duty to abide by what the court said
Speaker 1: in the in the very near term. And the fifth
Speaker 1: Circuit that they'll be appealing to is the most conservative
Speaker 1: circuit in the country. Do you have any inkling as
Speaker 1: to what it might do. Well. It's interesting because you know,
Speaker 1: I didn't credit these preliminary injunction motions with much chance
Speaker 1: of success, largely because it's it's very difficult to convince
Speaker 1: a court that a temporary by its definition, a temporary
Speaker 1: hold or moratorium for further study, is something that's final
Speaker 1: enough for court to grab onto. But they did that
Speaker 1: here and and the court. You can tell that the
Speaker 1: court knows that this decision was on the edge because
Speaker 1: you don't normally see a four you for page opinion
Speaker 1: on a preliminary injunction motion. And the court spent a
Speaker 1: lot of times justifying the idea that this is a
Speaker 1: final agency action, and there's plenty of support for that,
Speaker 1: and the court went through a full page of citation
Speaker 1: to show that. But there's certainly supporting the other side.
Speaker 1: So I think that this is the case where you've
Speaker 1: got difficulty at both prongs of the preliminary injunction requirements
Speaker 1: and it's a close call. Now, usually the close call
Speaker 1: does go to the court, so maybe in this instance
Speaker 1: the Fifth Circuit would agree. But I don't think that
Speaker 1: the preliminary injunction itself is probably that impactful because this
Speaker 1: is going to have to also play out at the
Speaker 1: district court level on the merits part of the case,
Speaker 1: and by the time we get through that, I fully
Speaker 1: would expect that the bid administration would already have a
Speaker 1: solution to this out, whether that's holding those least sales
Speaker 1: while working on new rules or you know, going through
Speaker 1: some other avenue. Um. I think that the timing is
Speaker 1: it doesn't necessarily force easily sales to happen right away.
Speaker 1: Thanks for being on the show, Brandon. That's Brandon Barnes,
Speaker 1: Bloomberg Intelligence Senior litigation analyst. You can read more of
Speaker 1: Brandon's analysis by going to be I Go on the
Speaker 1: Bloomberg terminal. Pro Football Hall of Famer Shannon Sharp was
Speaker 1: discussing the trade rumors around then Atlanta Falcon starwide receiver
Speaker 1: Julio Jones during his Fox Sports show Undisputed, when Sharp
Speaker 1: decided to call Jones and ask him live on the
Speaker 1: air what we call it as well? Ask him, yes,
Speaker 1: I do right now? Are we calling? Okay? Well, really
Speaker 1: hope he answers here, Julio, have the guts to pick
Speaker 1: up the phone. Yeah, all right, Julio, Lou you want
Speaker 1: to go to the Cowboys, Julio? Or you want to
Speaker 1: stay in Atlanta. Jones was apparently unaware that the call
Speaker 1: and his revelations were being aired live on TV. Now
Speaker 1: no lawsuits have been filed, but theoretically speaking, good Sharp
Speaker 1: or Fox Sports be sued. This week, Massachusetts Supreme Judicial
Speaker 1: Court upheld the dismissal of Summerville Mayor Joe kurt Atoni's
Speaker 1: lawsuit against bar Stool for recording and publishing a phone
Speaker 1: interview because of his consent. So a lot depends on
Speaker 1: what states rules are applied in the case of a
Speaker 1: recorded conversation. Here to discuss the legal implications of an
Speaker 1: ambush interview is Daniel Novak, a publishing industry attorney and
Speaker 1: chair of the New York State Bar Association Committee on
Speaker 1: Media Law. Let's get some basics first. The rule in
Speaker 1: most states is that only one party has to consent
Speaker 1: to a recording. So does that basically mean you can
Speaker 1: tape any conversation if you're in one of those states. Yes,
Speaker 1: and no. If you are in the majority of states
Speaker 1: that we call one party consent, as long as you
Speaker 1: are a party to the conversation, you should be okay.
Speaker 1: But where it gets fuzzy can be where you're not
Speaker 1: a party, and so being one party or two party
Speaker 1: consent states are sort of irrelevant if you're not yourself
Speaker 1: the person that's engaged in the conversation. Now, most jurisdiction
Speaker 1: would just look at whether or not the people that
Speaker 1: were having the conversation had a realistic expectation that it
Speaker 1: would be between them. And so if you're sitting at
Speaker 1: a restaurant, you know, crowd a restaurant next to a
Speaker 1: couple and they're talking and you know everything is with
Speaker 1: an ear shot, it could be okay to record potentially
Speaker 1: because you would say that anyone in that room could
Speaker 1: have heard that. So it gets a little tricky when
Speaker 1: you're not a party, but if you are, then it
Speaker 1: becomes relatively straightforward. But on disputedy is taped in California,
Speaker 1: which is a two party consent state, tell us about
Speaker 1: the law there. So California, despite being very media friendly
Speaker 1: in many respects, they have one of the best what
Speaker 1: we call anti flap laws that discourages plaintiffs from bringing
Speaker 1: baseless defamation suits. They happen to have a more restrictive
Speaker 1: recording statute, and so California is one of those two
Speaker 1: parties states. I think there's about maybe a dozen or
Speaker 1: so of them, and so in California, what jan and
Speaker 1: Sharp did has criminal and civil ramifications. However, the call
Speaker 1: presumably went to Georgia. I don't actually know where really
Speaker 1: I was at the moment, but for the sake of argument,
Speaker 1: he was based there at the time. And so it
Speaker 1: created a clash of laws, because when you look at
Speaker 1: two different parties, it's not always a given the law
Speaker 1: of which state would apply. Logically, it seems like the
Speaker 1: law of the state where the conversation is being recorded
Speaker 1: should apply. Well, it's tricky because you would say it's
Speaker 1: being recorded in California. Right. The arguments, by the way,
Speaker 1: are persuaded on both sides. One side of it would be, well, look,
Speaker 1: why are protecting someone Jones and this instance whose own
Speaker 1: state says this is sign have at it, you know,
Speaker 1: record if you wish at the behest of the state,
Speaker 1: you know California that has no interest in protecting Georgia residents.
Speaker 1: On the other hand, California could have an interest in saying, well,
Speaker 1: look we want to discourage this type of behavior on
Speaker 1: the recorder side, right, it's not just about protecting Georgia residents,
Speaker 1: is actually just telling California residents don't do this. And
Speaker 1: one of the factors that course have looked at as well,
Speaker 1: how feasible is it for people to sort of moderate
Speaker 1: their behavior based on the location of the person they're
Speaker 1: either calling or being called by. You could be calling
Speaker 1: someone to record them. You could similarly decide that when
Speaker 1: someone calls you to hit the record. And so there
Speaker 1: was a case recently where a Georgia company was calling
Speaker 1: California residents and so not only did California have an
Speaker 1: interest in protecting their residence from being recorded, but the
Speaker 1: court found that it wouldn't be too untenable for a
Speaker 1: Georgia company to know who they're calling. Most people know
Speaker 1: who they're calling, and so it wouldn't be unreasonable for
Speaker 1: a Georgia company to say, well, look, this calls a
Speaker 1: California resident. We need to alert them that the call
Speaker 1: is going to be recorded. If they don't like that,
Speaker 1: they can hang up the phone. So in that circumstance,
Speaker 1: the equities all sort of lined up. But you could
Speaker 1: see how when it's reversed and it's a California resident
Speaker 1: calling a Georgia resident, it gets a little trickier because
Speaker 1: it again it becomes about discouraging. And here in this instance, yes,
Speaker 1: Shannon Sharp probably could know that his target within Georgia's
Speaker 1: but not everybody is going to have the presence of
Speaker 1: mind to do that quick mental calculus of where they are.
Speaker 1: And so the court in California might conclude, we don't
Speaker 1: want Shannon Sharp to have to consult, you know, Alexis
Speaker 1: Search to figure out what Julio Jones residences or ask him, hey,
Speaker 1: are you on vacation right now? Maybe cross state lines
Speaker 1: that sort of thing. You know, it's the better policy
Speaker 1: is probably just a discourage it outright, and so, like
Speaker 1: I said, a court could go either way on that question.
Speaker 1: Does there have to be an expectation of privacy? Because
Speaker 1: going back to what you said in the beginning about
Speaker 1: let's say a conversation in a restaurant. Here, you're a
Speaker 1: football star talking to a guy who does a sports
Speaker 1: show on TV. I mean, do you have any expectation
Speaker 1: that what you're saying is not going to be recorded? Yeah,
Speaker 1: and it feels like splitting hairs, But but he does.
Speaker 1: He has an expectation not in the content of his speech,
Speaker 1: but literally in the sound and reproduction of it. And
Speaker 1: so it sounds funny that that would be what the
Speaker 1: tipping point is. But California law does not want people
Speaker 1: using electronic means to record people. And so rather than
Speaker 1: trying to have an analysis that invites all these complicated
Speaker 1: factors like what was the objective expectation of both sides,
Speaker 1: what was their subjective beliefs, etcetera, California has created this
Speaker 1: bright mind rule, which is, if you want to preserve
Speaker 1: this conversation for posterity, you need to ask the other
Speaker 1: side or let them know, and then again they can
Speaker 1: decide what don't they want to continue? And that's why
Speaker 1: you know, when you and I receive calls that are automated,
Speaker 1: if it says this call will be recorded, and that's
Speaker 1: your cue. If you don't like that, hang up the phone.
Speaker 1: What about Fox Sports because it's the deep pocket here.
Speaker 1: If it were sued, do the same factors come into
Speaker 1: play or are there other factors? So Fox Sports is
Speaker 1: an interesting sort of extension of this because in the
Speaker 1: vast majority of recording and wire tap cases there's an intermediary.
Speaker 1: So if Shanna Sharp was just the next player who
Speaker 1: had recorded his friends conversation and handed it to Fox Sports,
Speaker 1: Fox Sports will be protected under the Supreme Court ruling
Speaker 1: in a case called part Nicki versus Bopper, And in
Speaker 1: that case they essentially said that if your hands aren't dirty,
Speaker 1: that you're not going to be responsible. And that's just
Speaker 1: designed to give them the news media some breathing room
Speaker 1: because oftentimes the most important material of the public interest
Speaker 1: in the chain of title, there's been something that's gone
Speaker 1: wrong in terms of legality, and so you can't police
Speaker 1: the media for accurate reporting on a stolen you know,
Speaker 1: or recorded material. You know. That's all of leak sporting,
Speaker 1: really right, and so here we have a difference because
Speaker 1: Fox Sports was live on the air, and there's the
Speaker 1: litional conduct. They're the ones that are hitting on one sense,
Speaker 1: Stantons hitting record on his phone or he's not recording
Speaker 1: it really, he's just talking out loud on speaker phone
Speaker 1: and you can hear how it Roy, it's really the
Speaker 1: recorder is actually Fox Sports, who has their cameras trained
Speaker 1: on on Shanna. He's miked up for audio. Now, you
Speaker 1: could argue that again this is what's been reported. They
Speaker 1: weren't aware that you planned to do this, and so
Speaker 1: maybe you can find the room in your heart to
Speaker 1: sort of forgive them that this was like an emerging
Speaker 1: situation and and they didn't have the presence of mind
Speaker 1: to yell cut or you know, take it to a
Speaker 1: commercial or something. But the call lasted at about a minute,
Speaker 1: and so at certain points you're all in. And so
Speaker 1: that the bart Nikki president and Maybew does not really
Speaker 1: protect them because again it's there's no transfer to a middleman.
Speaker 1: The live nature of these shows makes it difficult. Yeah,
Speaker 1: and I think it's just a consequence of the formats.
Speaker 1: But they shows, you know, they can be taped live,
Speaker 1: they don't necessarily involve a lot of careful vetting of material.
Speaker 1: You know, if this was a news program as opposed
Speaker 1: to commentary, there's probably a lawyer in the building. You
Speaker 1: can say, hey, can I run this idea by you?
Speaker 1: And they'll say you need to get consent. And so,
Speaker 1: because this was not in their wheelhouse and Shannon Sharpe
Speaker 1: was probably going off book, I think that they just
Speaker 1: didn't have the presence of mind. I would find on
Speaker 1: like that they had a lawyer standing there, you know,
Speaker 1: with like the red button, the way that you might
Speaker 1: in other circumstances like reality television where you think something
Speaker 1: could go wrong and you need to be able to
Speaker 1: be on a tent second delay or something like that. Now,
Speaker 1: I don't know what procedures they have in place. They
Speaker 1: could be on the delay. There could be all these
Speaker 1: ways that it could have been slowed down. And tell
Speaker 1: us a little about the specifics of the California law. Here.
Speaker 1: It comes in under the specific California Anti Recording Statute.
Speaker 1: And I should say that it's not terribly renumerative. The
Speaker 1: statute I think said five tho dollars per a sense,
Speaker 1: or I think triple your actual damages and just like
Speaker 1: in defamation of privacy, it's very hard to assign a
Speaker 1: dollar figure too damages, and so the only reason I
Speaker 1: could see Julio Jones bringing a claim is just on principle,
Speaker 1: and I think he's already been sort of vindicated. In
Speaker 1: the public side, people were upset that Sharp did this,
Speaker 1: and so it's not a high upside play. The actual
Speaker 1: legal side of it had some complexity, you know, like
Speaker 1: we discussed it's California law. Really that's why here. But
Speaker 1: you know people have sued. Bar Stool Sports was sued
Speaker 1: for recording. They won their case. It was it had
Speaker 1: a different fact pattern, but it wouldn't be the first
Speaker 1: time that somebody felt put off by being reported and
Speaker 1: decided to sue. Thanks for being on the show. That's
Speaker 1: Daniel Novak, publishing industry attorney, and I know that ten
Speaker 1: v Val Sangakar is a co writer of your article
Speaker 1: on this issue. And that's it for this edition of
Speaker 1: the Bloomberg Law Show. Remember you can always at the
Speaker 1: latest legal news is on our Bloomberg Law Podcast. You
Speaker 1: can find them on Apple Podcasts, Spotify and at www
Speaker 1: dot Bloomberg dot com, slash podcast Slash Law. I'm June Boso,
Speaker 1: and you're listening to Bloomberg