WEBVTT - Cheerleader's Profane Post Tests Speech Rights 0:00:00.160 --> 0:00:04.840 Clause. The Supreme Court justice has struggled with a case 0:00:04.880 --> 0:00:08.080 about a high school cheerleader who claims her First Amendment 0:00:08.160 --> 0:00:10.959 rights were violated when she was suspended from the team 0:00:11.000 --> 0:00:15.080 because of a profane snapchat post. Some of the justices, 0:00:15.120 --> 0:00:18.479 like Selia Sotomayor and Brett Kavanaugh, seemed to think the 0:00:18.520 --> 0:00:22.080 punishment of a year long suspension from the team was excessive. 0:00:22.680 --> 0:00:26.360 You're punishing her here because she went on the internet 0:00:27.200 --> 0:00:30.840 and cursed and used to curse word related to what 0:00:32.040 --> 0:00:38.240 to her unhappiness with the school and cheering right. She's competitive, 0:00:38.920 --> 0:00:43.080 she cares. She blew off steam like millions of other 0:00:43.159 --> 0:00:45.720 kids have when they're disappointed about being cut from the 0:00:45.760 --> 0:00:48.320 high school team or not being in the starting lineup. 0:00:48.479 --> 0:00:51.600 While others were concerned that any sort of broad ruling 0:00:51.600 --> 0:00:58.240 would have unforeseen consequences, here's Justice Stephen Bryer standard joining 0:00:58.280 --> 0:01:01.480 me his First Amendment expert Eugene Va, a professor at 0:01:01.560 --> 0:01:04.720 u c l A Law school. So fifty million public 0:01:04.760 --> 0:01:09.200 school students in the country, they're all on social media. 0:01:09.640 --> 0:01:13.959 How significant is this case? Well, it could be huge 0:01:14.240 --> 0:01:16.760 or it could be narrow. It all depends on how 0:01:17.120 --> 0:01:20.440 the justices decide that indeed, it could be huger even 0:01:20.480 --> 0:01:23.640 than social media. So the funny thing about the way 0:01:23.640 --> 0:01:27.840 the argument went is the lawyer for the school, the 0:01:28.200 --> 0:01:33.320 local government entity least of last, leading leading Supreme Court advocacy, 0:01:33.560 --> 0:01:37.679 starts out with this very speech protective art. She says, Look, 0:01:37.760 --> 0:01:41.960 Tinker is the official test war First Amendment protection fork 0:01:42.080 --> 0:01:45.720 through closed students. It's actually very speech protective. It's so 0:01:45.840 --> 0:01:48.560 speech protective that it's not a problem to apply it 0:01:48.640 --> 0:01:51.800 to social media and apply it to other off campus speech. 0:01:52.000 --> 0:01:55.160 To be sure, in certain situations, such as when somebody 0:01:55.280 --> 0:01:58.080 is saying something that might interfere with the way that 0:01:58.280 --> 0:02:01.560 their athletic programs is operating or something like that, then 0:02:01.600 --> 0:02:05.600 the speech can be punished. But generally speaking, most political, religious, 0:02:05.600 --> 0:02:08.760 and other such speeches really strongly protected on campus and 0:02:08.840 --> 0:02:11.640 off And the lawyer for the federal government, who was 0:02:11.800 --> 0:02:14.840 mostly supporting the school district position on this, said the 0:02:14.880 --> 0:02:18.960 same thing. On the other hand, upcomes David Cole, the 0:02:19.000 --> 0:02:20.799 director of the a c l U, who is the 0:02:20.840 --> 0:02:23.720 lawyer for the student, and he says, oh, this Tinker test, 0:02:23.840 --> 0:02:27.359 which is actually very unprotected. It allows all sorts of 0:02:27.480 --> 0:02:31.520 restrictions death school and that's why it can't be extended 0:02:31.520 --> 0:02:35.200 off campus because it provides so little protection that it 0:02:35.240 --> 0:02:38.280 has to do cabins to school speech. So because of 0:02:38.320 --> 0:02:40.919 the imperatives of the litigation, they were just trying to 0:02:40.960 --> 0:02:44.240 win the case for their clients, they in a sense 0:02:44.320 --> 0:02:48.560 almost flipped size on the bigger picture question of the 0:02:48.560 --> 0:02:51.080 scope of Tinker. So that question is going to be 0:02:51.200 --> 0:02:54.200 very much in play. Potentially, the court could hand down 0:02:54.200 --> 0:02:56.960 a decision, for example, that says yes, Tinker applies on 0:02:57.000 --> 0:03:00.200 campus as well as off campus because Tinker is just 0:03:00.280 --> 0:03:03.320 speech protective standers, and that could affect be tried for 0:03:03.800 --> 0:03:07.000 through twelve students everywhere. Tinker is a landmark case from 0:03:07.080 --> 0:03:10.720 nineteen sixty nine where the courts said that students don't 0:03:10.800 --> 0:03:13.800 shed their constitutional rights to freedom of speech at the 0:03:13.840 --> 0:03:19.120 schoolhouse gate. Can you explain the standard established in Tinker? Sure? 0:03:19.400 --> 0:03:23.000 The Tinker standards says, generally speaking, through twelve student speech 0:03:23.320 --> 0:03:27.320 can be restricted if it is reasonably likely to create 0:03:27.400 --> 0:03:30.880 material and substantial disruption. So think about it as a 0:03:31.080 --> 0:03:36.320 disruptive speech. Sanders Generally speaking, you can't punish ordinary citizens 0:03:36.320 --> 0:03:39.720 speech because it's disrupted. For example, if you're picketing some 0:03:39.800 --> 0:03:43.119 government building that could be quite disruptive of the activity 0:03:43.120 --> 0:03:45.880 in the building. But unless you're actually blocking entrances, are 0:03:45.920 --> 0:03:47.760 threatening people, or whatever else, you have the right to 0:03:47.760 --> 0:03:50.760 do that. But at least at school, Tinker says, if 0:03:50.800 --> 0:03:54.920 the speech is substantially and materially disruptive, then in that 0:03:55.000 --> 0:03:58.360 case it can indep be restrict So the question presented 0:03:58.360 --> 0:04:00.280 to the court here is what if this is beach 0:04:00.360 --> 0:04:05.480 off campus but it risks creating disruption on campus, does 0:04:05.560 --> 0:04:08.000 the school have the power to restrict that speech too, 0:04:09.040 --> 0:04:13.320 or would that unconstitutionally give the school sort of twenty 0:04:13.400 --> 0:04:17.160 four seven power over students speech in a way that 0:04:17.400 --> 0:04:20.960 the First Amendment cannot tell. At one particular thing that's 0:04:21.000 --> 0:04:23.440 really important that played a big role with the argument 0:04:23.480 --> 0:04:26.600 is this question of the Heckler's Vito say, somebody standing 0:04:26.640 --> 0:04:30.120 in the street corner and is saying things that offend 0:04:30.200 --> 0:04:33.200 the crowds. Could be political, religious, could be about race, 0:04:33.320 --> 0:04:37.120 about sexual orientation, about religion, about whatever else. And somebody 0:04:37.120 --> 0:04:38.839 in the crowd threatened to attack, and and the police 0:04:38.880 --> 0:04:41.080 officers and says, Okay, I'm gonna break all this up 0:04:41.400 --> 0:04:44.320 by removing the speaker, by telling the speaker to stop, 0:04:44.400 --> 0:04:49.560 because the hecklers are endangering the speaker and potentially causing 0:04:49.600 --> 0:04:52.560 a fight and others breach of the peace, that's not allowed. 0:04:52.600 --> 0:04:55.360 That would be a so called heckler's veto. Um. It 0:04:55.400 --> 0:04:57.840 would be the government essentially stepping in on the side 0:04:57.880 --> 0:05:00.320 of the hecklers to suppress the speaker. And the court 0:05:00.360 --> 0:05:03.200 has said that is not permissible because otherwise that we 0:05:03.320 --> 0:05:08.719 give heckos too much power. But lower courts applying Tinker 0:05:08.800 --> 0:05:12.240 have said well. Tinker says that speech can be restricted 0:05:12.279 --> 0:05:16.000 on campus if it's disruptive enough, and that disruption could 0:05:16.120 --> 0:05:18.479 very well come from people heckling, which is to stay 0:05:18.520 --> 0:05:23.039 in this context, either interrupting class or possibly fighting with 0:05:23.080 --> 0:05:26.680 a student or something along those lines. So the lower courts, 0:05:26.680 --> 0:05:29.040 at least some of them, have said the heckler's veto 0:05:29.240 --> 0:05:32.320 is a good basis for restricting speech on campus. One 0:05:32.360 --> 0:05:36.599 particularly notorious case involved some students at a California school 0:05:36.640 --> 0:05:40.279 wearing t shirts with the American platform the American flag, 0:05:40.720 --> 0:05:44.320 and this is because it was sincer demyo and apparently 0:05:44.480 --> 0:05:48.560 some students were upset at these American Flag wars because 0:05:48.560 --> 0:05:51.040 they thought that that was disrespectful and kind of anti 0:05:51.160 --> 0:05:54.800 Hispanic or anti Mexican when that's done on sincer demayo 0:05:54.920 --> 0:05:57.120 and the school said, well, yeah, you have to take 0:05:57.160 --> 0:06:00.120 off your American flag t shirts. And the ninth or 0:06:00.200 --> 0:06:02.880 it said yeah, the school was allowed to do that 0:06:03.000 --> 0:06:05.000 because there was a threat of disruption, and yeah, the 0:06:05.040 --> 0:06:07.480 Heckler's Vito is a good basis first strict in speech 0:06:07.480 --> 0:06:10.119 on campus. Now, Lisa Blad, the lawyer for the school 0:06:10.160 --> 0:06:13.279 district in the BM case, said no, no, no, no, no. 0:06:13.400 --> 0:06:17.279 Heckler's Vito can't be used as a basis for restricting 0:06:17.320 --> 0:06:20.840 speech on campus. And that's why the Tinker standards Because 0:06:20.880 --> 0:06:23.960 it rejects the Hecklers viso. The Tinker standard is actually 0:06:24.040 --> 0:06:27.760 quite speech protective and thus can be applied off campus. 0:06:27.760 --> 0:06:31.560 This speech didn't cause any disruption to school functions. How 0:06:31.600 --> 0:06:35.480 does that fit in here? Well, so, the lower court 0:06:35.560 --> 0:06:39.679 says that the destruction test doesn't even apply to off 0:06:39.760 --> 0:06:44.240 campus speech. Off campus speech if it's protected against criminal 0:06:44.240 --> 0:06:47.440 punishment or against the aliabilities, protected against school discipline, at 0:06:47.520 --> 0:06:50.120 least generally speaking. So as a result, it doesn't matter 0:06:50.160 --> 0:06:52.359 if it's a disruptive or not. The school wants to 0:06:52.360 --> 0:06:54.560 be able to show that it was disruptive not to 0:06:54.680 --> 0:06:58.800 all of the school, but to the operation of the 0:06:58.960 --> 0:07:02.479 cheerleading squads. They say, Look, as she wasn't expelled from school, 0:07:02.520 --> 0:07:04.960 she wasn't suspended from school. She was only suspended from 0:07:05.000 --> 0:07:10.080 secheer leading because her speech being disrespectful to the whole 0:07:10.240 --> 0:07:14.200 enterprise of cheerleading and being disrespectful therefore to the coach 0:07:14.240 --> 0:07:19.160 and her teammates, is disrupting the effectiveness of this particular 0:07:19.280 --> 0:07:22.440 cheerleading program. So that would be the school dark. Some 0:07:22.560 --> 0:07:25.600 of the justices seemed to pick up on the point 0:07:25.680 --> 0:07:29.040 that this was an extracurricular activity. Does that give the 0:07:29.400 --> 0:07:33.800 school more leeway to limit outside speech. So that's a 0:07:33.880 --> 0:07:36.440 good question, and we don't know what the court will 0:07:36.440 --> 0:07:39.440 say about that. The question presented to the court in 0:07:39.480 --> 0:07:42.200 the petition, the question that the Court agreed to hear 0:07:42.600 --> 0:07:45.400 Justin's focus on that. It just asks whether the Tinker 0:07:45.440 --> 0:07:49.520 standard of plastoff campus. And usually the court tries to 0:07:49.560 --> 0:07:53.120 stick with a question presented, So some justices might say, look, 0:07:53.240 --> 0:07:55.760 we're going to leave this question of were there any 0:07:55.800 --> 0:07:58.200 special rules for rest for curricular activities. We're going to 0:07:58.320 --> 0:08:00.840 leave them to a different case where that is the 0:08:00.920 --> 0:08:03.520 issue that we agreed to hear. In this case, we 0:08:03.600 --> 0:08:06.520 are deciding the question presented, which is all about our 0:08:06.600 --> 0:08:10.679 campus speech, regardless of whether it relates to an extracurricular activity. 0:08:10.880 --> 0:08:14.080 At the same time, you could imagine some of the justices, 0:08:14.160 --> 0:08:16.080 or maybe the majority of the justice is saying, look, 0:08:16.360 --> 0:08:19.160 we ought to decide the case narrowly with an eye 0:08:19.200 --> 0:08:24.320 towards the particular facts of this particular situation. And in 0:08:24.360 --> 0:08:28.440 this situation, the punishment for the student was simply suspensioned 0:08:28.440 --> 0:08:31.280 from an extracurricular activity. That kind of the threat of 0:08:31.280 --> 0:08:34.400 that kind of punishment isn't this chilling speech. It doesn't 0:08:34.480 --> 0:08:37.840 deprive somebody of their right to an education. It only 0:08:37.880 --> 0:08:40.559 deprived them of the ability to be on the cheerleading squad. 0:08:40.559 --> 0:08:42.439 And that's not a big deal. So you can imagine 0:08:42.440 --> 0:08:44.480 the court coming up with this rule, although you could 0:08:44.520 --> 0:08:47.040 also imagine some justice is setting that for many students, 0:08:47.200 --> 0:08:51.240 participation to me in an extracurricular activity is very important 0:08:51.240 --> 0:08:54.520 for them, both kind of personally and some respects educationally. 0:08:55.160 --> 0:08:59.760 Um and threatening removal from that kind of activity for 0:09:00.040 --> 0:09:02.640 your speech is indeed going to be chilling. Because the 0:09:02.720 --> 0:09:05.040 recall in this case, you know, the speech was just 0:09:05.200 --> 0:09:08.440 kind of this girl complaining about about not making a 0:09:08.640 --> 0:09:12.720 varsity But in principle, you can imagine somebody saying something 0:09:12.760 --> 0:09:15.640 political or saying something about a religious topic or some 0:09:15.720 --> 0:09:19.920 other topics that might cause tension within the team, and 0:09:19.960 --> 0:09:22.320 then you could imagine the coach the case, fine, you're 0:09:22.360 --> 0:09:24.920 off the team because you're saying things about immigration or 0:09:24.960 --> 0:09:27.920 about race or about religion that people don't like, and 0:09:27.960 --> 0:09:31.480 that again could be quite chilling, a really quite valuable speech. 0:09:31.520 --> 0:09:33.320 So those are the kind of questions of the court 0:09:33.400 --> 0:09:37.920 might have to consist. So you had Justice Alito saying 0:09:38.080 --> 0:09:42.120 they needed a clear rule and Justice Brier saying, I'm 0:09:42.160 --> 0:09:45.160 frightened to death of writing a standard. Do you have 0:09:45.200 --> 0:09:48.200 any idea where they might come out in this? You know, 0:09:48.240 --> 0:09:50.360 it's very hard to tell. It's always hard to tell 0:09:50.400 --> 0:09:52.720 for moral argument what the justices are going to do, 0:09:52.800 --> 0:09:56.040 because often the justices really are asking questions because they're 0:09:56.080 --> 0:09:58.440 not really sure what the answer is, or sometimes they're 0:09:58.480 --> 0:10:02.240 just floating possible to areas or envisioning possible objections to 0:10:02.320 --> 0:10:04.880 the position that they that they might want to ultimately 0:10:04.880 --> 0:10:07.679 come to, likewise, of course, through nine of them. So 0:10:08.280 --> 0:10:10.840 some justices might go one way some justices might go 0:10:10.880 --> 0:10:12.800 another way. Some justice is might go a third or 0:10:12.880 --> 0:10:16.160 fourth way. So it's really hard to tell what the 0:10:16.280 --> 0:10:19.000 justices are going to decide. I do think there was 0:10:19.880 --> 0:10:25.360 general concern on the part of many justices about schools 0:10:25.400 --> 0:10:30.760 having undo power um to restrict students speech, especially speech that, 0:10:31.000 --> 0:10:33.880 unlike the speech in this particular case, really does deal 0:10:33.920 --> 0:10:38.079 with kind of bigger picture political, religious, social issues, including 0:10:38.120 --> 0:10:40.760 those issues as they intersect with the school like, for example, 0:10:40.840 --> 0:10:44.640 claims of maybe misconduct or sexual misconduct by teachers or 0:10:44.679 --> 0:10:47.240 classmates or whatever. On the other hand, I do think 0:10:47.280 --> 0:10:50.360 that you saw a lot of justices recognizing that schools 0:10:50.480 --> 0:10:53.560 need considerable authority to make sure that the schooling goes 0:10:53.600 --> 0:10:58.040 on effectively. So again, I think it's very hard to 0:10:58.480 --> 0:11:01.200 figure out what they're going to do until one reached 0:11:01.240 --> 0:11:05.400 the opinion. A couple of months from that, Justice Brett 0:11:05.440 --> 0:11:10.000 Kavanaugh suggested a narrow kind of ruling that might not 0:11:10.120 --> 0:11:13.679 give much guidance to lower courts. Well, that's what I 0:11:13.720 --> 0:11:16.199 started with. You know, you could imagine this opinion being 0:11:16.200 --> 0:11:19.880 written very narrowly, or you could imagine this opinion being 0:11:19.920 --> 0:11:22.920 written relatively or only A lot depends on whether they 0:11:23.320 --> 0:11:28.679 justices want to resolve this issue now themselves or leave 0:11:28.720 --> 0:11:30.800 it to lower courts. So, for example, you can imagine 0:11:30.800 --> 0:11:36.000 the Court saying Tinker does apply off campus because it's 0:11:36.040 --> 0:11:39.920 important to prevent disruption on campus, and off campus speech 0:11:40.040 --> 0:11:44.240 can cause on campus disruption. But we're not resolving, for example, 0:11:44.320 --> 0:11:46.800 whether Tinker allows speech to be restricted because of a 0:11:46.840 --> 0:11:50.680 Heckler's veto. We're not resolving how disruptive the speech needs 0:11:50.679 --> 0:11:53.040 to be. We're not resolving whether there would be a 0:11:53.080 --> 0:11:58.200 different standard for speech that's disruptive nearly of an extracurricular 0:11:58.240 --> 0:12:00.760 activity and the only thing that's happening to the student 0:12:00.880 --> 0:12:03.760 is the students suspended from that activity. We leave that 0:12:03.800 --> 0:12:06.720 for lower courts to resolves. You can imagine the Court 0:12:06.800 --> 0:12:10.160 doing that, and if it does well, then if the 0:12:10.520 --> 0:12:12.400 things will go back to lower courts and then have 0:12:12.559 --> 0:12:15.320 that to reconsider some of these questions. You could also 0:12:15.400 --> 0:12:18.800 imagine the court, for example, making the decisions that is 0:12:18.800 --> 0:12:22.080 on its face quite narrow, but by flagging certain issues 0:12:22.200 --> 0:12:25.360 by saying, you know, it's an interesting question whether speech 0:12:25.400 --> 0:12:27.600 can be restricted on or off campus because of the 0:12:27.640 --> 0:12:31.079 hecklers veto. Then in that case, perhaps lower courts will 0:12:31.120 --> 0:12:33.959 be emboldened to try to resolve that, and then maybe 0:12:33.960 --> 0:12:36.240 another such case will go back up to these to 0:12:36.320 --> 0:12:38.960 the Supreme Court. It's possible. At the same time, I 0:12:39.000 --> 0:12:41.440 do think that Justice Alito has a good point that 0:12:41.640 --> 0:12:45.920 government officials and students deserve some guidance as to what 0:12:46.280 --> 0:12:49.319 can be said and what can be punished, and if 0:12:49.360 --> 0:12:52.319 the Court just sort of just just leaves things uncertain, 0:12:52.800 --> 0:12:55.160 then there won't be much protection for speech, and there 0:12:55.200 --> 0:12:59.320 won't be much protection for the legitimate interests of school boards. 0:13:00.320 --> 0:13:04.920 Does it seem though, that they're likely to reverse the 0:13:05.040 --> 0:13:10.440 Third Circuit because that decision was so broad, Well, I'm 0:13:10.480 --> 0:13:14.360 not sure. I'm not sure. Again, I think it might depend, 0:13:14.400 --> 0:13:17.960 for at least some justicesum how much speech restriction they 0:13:18.000 --> 0:13:21.240 see Tinker as allowing. So if, for example, just as 0:13:21.240 --> 0:13:24.600 the leader is persuaded that on campus, Tinker does allow 0:13:24.679 --> 0:13:28.560 restriction of political speech, religious speech, speech on social matters 0:13:28.800 --> 0:13:32.280 so long as classmates can be offended enough, I don't 0:13:32.280 --> 0:13:34.560 think he'd want to extend that off campus. So you 0:13:34.559 --> 0:13:37.800 can imagine him saying, look, on campus, which has to 0:13:37.840 --> 0:13:40.840 be pretty heavily restricted, or at least schools have to 0:13:40.880 --> 0:13:43.800 have the power to to restrict speech. But if that's so, 0:13:44.320 --> 0:13:46.200 then in that case we need to have a more 0:13:46.240 --> 0:13:49.360 speech protective rule of or he could even say I 0:13:49.400 --> 0:13:52.920 think that speech on campus should be pretty broadly protected, 0:13:52.960 --> 0:13:56.120 but my colleague is disagreed. And given that my colleagues 0:13:56.160 --> 0:13:58.640 disagree and view Tinker as giving schools a lot of 0:13:58.640 --> 0:14:01.280 power on campus all than in that case, at the 0:14:01.360 --> 0:14:03.200 very least, I think they should be denied that power 0:14:03.240 --> 0:14:05.720 off campus. You can imagine some of the justices taking 0:14:06.240 --> 0:14:09.560 but again you could also imagine some of the justices saying, well, 0:14:09.640 --> 0:14:11.880 speech off campus should be treated the same way as 0:14:11.920 --> 0:14:14.920 on campus because both can have pomful effects on campus, 0:14:14.920 --> 0:14:16.960 and because it's often so hard to tell what's up 0:14:17.240 --> 0:14:19.760 what counts is on or off campus thatst all. A 0:14:19.800 --> 0:14:22.000 lot of these things can be viewed on campus, even 0:14:22.000 --> 0:14:24.880 if they're sent from uf campus. But given that this 0:14:25.080 --> 0:14:27.800 is so, we need to make sure that there is 0:14:27.840 --> 0:14:32.440 a pretty bright line exception for for get political, religious, 0:14:32.440 --> 0:14:35.880 and similar kinds of speech. So it's really hard to predict. 0:14:35.920 --> 0:14:37.760 I think what it is that the justices are going 0:14:37.760 --> 0:14:41.560 to do here. Have Supreme Court decisions in the past, 0:14:41.680 --> 0:14:45.040 let's say, at ten, fifteen, twenty years, have they weakened 0:14:45.240 --> 0:14:51.360 generally weakened protections for students speech. Yes, after Tinker, which 0:14:51.360 --> 0:14:54.200 after all came out in favor of the students there 0:14:54.200 --> 0:14:56.640 the students wearing the black armbands because the court said 0:14:56.880 --> 0:15:00.200 there wasn't enough evidence of disruption after things are In 0:15:00.240 --> 0:15:04.640 case Bessel School District coursus Fraser, that said, well, vulgar 0:15:04.760 --> 0:15:08.040 speech speech about kind of a full of sexual innuendo 0:15:08.600 --> 0:15:11.480 can be restricted on campus. And by the way, I 0:15:11.520 --> 0:15:15.400 think it's pretty clear that this Fraser doctrine does not 0:15:15.480 --> 0:15:18.240 apply off campus. You can't punish a student for off 0:15:18.280 --> 0:15:23.920 campus sulgarity if they're not disrupted. Likewise, in in Morse Frederick, 0:15:24.680 --> 0:15:28.800 the court said, well, on campus speech that seems to 0:15:28.960 --> 0:15:33.400 encourage illegal drung you can indep restricted. And again though 0:15:33.440 --> 0:15:35.920 the court stressed that this was limited to on campus 0:15:36.000 --> 0:15:39.280 or at least that school sponsored activities there. The speech 0:15:39.360 --> 0:15:42.160 was physically off campus, but it was in the context 0:15:42.240 --> 0:15:45.440 of a school and sponsored school in school endorsed it too. 0:15:46.000 --> 0:15:50.920 So yes, the court has authorized more restrictions on student 0:15:51.000 --> 0:15:54.680 speech in some measurement. That having been said, I don't 0:15:54.680 --> 0:15:57.520 think that the tenor of the argument in this case 0:15:58.080 --> 0:16:00.080 was just well, the school boards need to win in 0:16:00.200 --> 0:16:04.120 because schools. Schools should have broad power. I think many 0:16:04.200 --> 0:16:07.600 of the justices recognized that the power of the schools 0:16:07.680 --> 0:16:10.760 has to stop at some point, especially when we're talking 0:16:10.800 --> 0:16:15.400 about speech that's offensive for politically. So, finally, you wrote 0:16:15.480 --> 0:16:18.840 an amiguous brief in this case, what was your position? 0:16:19.400 --> 0:16:22.720 So our position was it looks like at least lower 0:16:22.720 --> 0:16:27.200 courts seemed to say that Tinker does allow a lot 0:16:27.280 --> 0:16:30.920 of political speech and the like to be restricted on campus, 0:16:31.000 --> 0:16:34.160 so long is it's offensive enough to be disruptive. If 0:16:34.240 --> 0:16:37.080 that's the rule, then in that case that has to 0:16:37.120 --> 0:16:40.520 be limited to on campus speech. You can't authorize twenty 0:16:40.520 --> 0:16:44.120 four seven control over student speech where every time a 0:16:44.200 --> 0:16:47.960 student says something that might offend classmates, even at a 0:16:48.000 --> 0:16:51.400 political rally, war online, where at a church, or in 0:16:51.440 --> 0:16:53.760 a letter to the editor of a newspaper, that the 0:16:53.840 --> 0:16:57.880 student would have to worry about about possibly being suspended 0:16:58.000 --> 0:17:00.040 or expelled at that So that was our position, and 0:17:00.120 --> 0:17:05.360 again that position rested on the lever courts generally speaking, 0:17:05.440 --> 0:17:08.639 viewing Tinker is not very speech protective, and you can 0:17:08.680 --> 0:17:10.800 imagine the court saying, well, we don't care what that 0:17:10.840 --> 0:17:13.880 brief said, because we really think the tinker is very 0:17:13.920 --> 0:17:17.280 speech protective, and if it broadly speech protective on campus 0:17:17.280 --> 0:17:20.960 with only a few mirror restrictions allowed, then maybe it 0:17:20.960 --> 0:17:23.040 should be applied dot campus. So you can imagine the 0:17:23.040 --> 0:17:26.320 court saying that, thanks Eugene, that Professor Eugene Vallak of 0:17:26.480 --> 0:17:32.359 u c l A Law School, did you order You 0:17:32.440 --> 0:17:35.200 don't have to answer that question. I'll answer the question 0:17:36.080 --> 0:17:39.359 you want answers. I think I'm entitled. You want answers? 0:17:39.480 --> 0:17:43.959 What the truth? You can't handle the truth? The confrontation 0:17:44.040 --> 0:17:46.880 between Tom Cruise and Jack Nicholson in a Few Good 0:17:46.920 --> 0:17:51.119 Men is high drama, but cross examination just doesn't happen 0:17:51.160 --> 0:17:54.680 that way in a real courtroom. Still, every criminal defendant 0:17:54.720 --> 0:17:58.120 has the constitutional right to confront the witnesses against them, 0:17:58.320 --> 0:18:00.159 and the Supreme Court is going to concern it or 0:18:00.200 --> 0:18:04.000 whether defendants weighed that constitutional right when they open up 0:18:04.040 --> 0:18:07.159 the door to certain evidence. Joining me as former federal 0:18:07.200 --> 0:18:11.040 prosecutor Robert Mints, a partner Macarter and English Bob, just 0:18:11.119 --> 0:18:14.200 about everyone's heard about a defendant's right to confront witnesses, 0:18:14.480 --> 0:18:18.159 but explain the confrontation clause the Sixth Amendment gives a 0:18:18.240 --> 0:18:21.880 defendant and a criminal prosecution the right to be confronted 0:18:21.880 --> 0:18:25.600 with the witnesses against him. What that means is that 0:18:25.720 --> 0:18:28.240 at a criminal trial which you're charged with an offense, 0:18:28.560 --> 0:18:31.520 your lawyer has the right to cross examine any witnesses 0:18:31.600 --> 0:18:35.240 who testifies against you. Prosecutors are not allowed to admit 0:18:35.280 --> 0:18:39.880 statement by other witnesses to present before the jury in 0:18:39.880 --> 0:18:43.879 culpatory evidence without giving the defendant lawyer the right to 0:18:43.960 --> 0:18:47.560 test the strength of that testimony by cross examining them 0:18:47.600 --> 0:18:50.359 in court in front of the jury. What happened in 0:18:50.400 --> 0:18:53.000 this case tell us a little bit about the facts 0:18:53.000 --> 0:18:56.440 in this case. This is a case of Darryl Hemphel, 0:18:56.520 --> 0:18:59.480 who has tried for murder in New York State after 0:18:59.560 --> 0:19:03.199 another defendant was tried for the same crime. The facts 0:19:03.200 --> 0:19:08.440 are actually quite unusual because it involved another defendant who 0:19:08.520 --> 0:19:11.600 ended up seeding guilty to possession of a firearm after 0:19:11.640 --> 0:19:14.840 the murder prosecution against him had ended in a mistrial. 0:19:15.119 --> 0:19:18.160 The case was about the two thousand and six shooting 0:19:18.200 --> 0:19:20.280 death of a child who was a passenger in a 0:19:20.359 --> 0:19:22.840 car that drove by a fight on the street and 0:19:22.880 --> 0:19:26.560 the bronze. The first defendant was tried and the jury 0:19:26.600 --> 0:19:29.800 could not agree on the guilt of the defendant and 0:19:29.800 --> 0:19:32.800 so it ended into the mistrial. Instead, what prosecutors did 0:19:32.800 --> 0:19:36.159 as they allowed this second defendant to plead guilty to 0:19:36.280 --> 0:19:39.760 possession of a handgun. But it was critical here is 0:19:39.800 --> 0:19:42.600 that that defendant pled guilty to possession of a three 0:19:42.720 --> 0:19:46.439 fifty seven revolver, which was not the gun that was 0:19:46.600 --> 0:19:50.119 used in the murder. So what happened at trial to 0:19:50.320 --> 0:19:54.600 lead the judge to allow in the statement of another defendant. 0:19:55.160 --> 0:19:59.240 At the trial, Misterhampful, his defense lawyer, advanced one of 0:19:59.280 --> 0:20:02.200 the most based defenses that you see in criminal cases, 0:20:02.359 --> 0:20:05.520 and that is that his clients did not commit the 0:20:05.600 --> 0:20:08.639 crime and some other person did. They tried to point 0:20:08.640 --> 0:20:11.119 the finger at the other defendant who had already pled 0:20:11.160 --> 0:20:15.560 guilty to possession of that different firearms. The court ruled 0:20:15.640 --> 0:20:19.359 in that case that once the defendant made that argument 0:20:19.359 --> 0:20:22.400 in front of the jury, the defense player had opened 0:20:22.400 --> 0:20:26.600 the door and allowed prosecutors to use the plea elocution, 0:20:26.680 --> 0:20:29.760 which is the statement that the other defendant made when 0:20:29.760 --> 0:20:33.200 he entered his guilty plea admitting possession of the three 0:20:33.359 --> 0:20:36.600 fifty seven revolver at the scene of the shooting that 0:20:36.760 --> 0:20:39.480 was not the gun. That killed the child, and so 0:20:39.920 --> 0:20:43.800 the judge said that the defense lawyer had created a 0:20:43.960 --> 0:20:47.600 misimpression in front of the jury. The prosecutors were entitled 0:20:47.600 --> 0:20:52.320 to correct by admitting that statement in evidence at the trial. 0:20:52.720 --> 0:20:55.840 The problem from the defense side is that the defense 0:20:55.920 --> 0:20:59.480 lawyer never had a chance to challenge that statement. The 0:20:59.560 --> 0:21:03.000 defendant six Amendment rights across examine that witness who was 0:21:03.160 --> 0:21:06.840 essentially testify against him, was never permitted at the trial. 0:21:06.880 --> 0:21:09.280 And that's the question that now before the Supreme Court. 0:21:09.760 --> 0:21:13.560 And in fact, that statement that the other defendant made 0:21:13.560 --> 0:21:17.520 in his plea elocution that was never subject to cross 0:21:17.560 --> 0:21:21.760 examination at all. Now that's exactly right, because it was 0:21:21.800 --> 0:21:26.080 a plea elocution. It's just a statement that's made at 0:21:26.080 --> 0:21:29.280 a guilty plea where a defendant has to admit the 0:21:29.359 --> 0:21:31.960 elements of the crime in order for a judge to 0:21:32.000 --> 0:21:35.000 accept that plea. So it's not cross examined by the 0:21:35.040 --> 0:21:38.080 prosecution or anybody else at the time. And what the 0:21:38.119 --> 0:21:41.920 defense here is arguing is that any competent defense attorney 0:21:42.119 --> 0:21:45.439 who had the ability to cross examine this other defendant 0:21:45.720 --> 0:21:49.000 could have PopEd holes in that narrative by asking the 0:21:49.040 --> 0:21:53.080 other suspect whether he, for example, also possessed the murder 0:21:53.160 --> 0:21:55.760 weapon in addition to the weapon that he fled guilty to, 0:21:56.320 --> 0:22:00.639 or by exploring the motivations of that defendant to plead 0:22:00.680 --> 0:22:03.520 guilty to that weapon's charge when he had originally been 0:22:03.600 --> 0:22:07.080 charged with murdering. Lower courts around the country are split 0:22:07.160 --> 0:22:09.840 on this issue. One reason that the Supreme Court might 0:22:09.880 --> 0:22:13.400 have taken the case. In your opinion as a former prosecutor, 0:22:13.640 --> 0:22:15.760 do you think the court should have allowed in that 0:22:15.880 --> 0:22:19.240 plea elocution. I think there's a good argument by the 0:22:19.359 --> 0:22:23.119 defense that that statement should not come in without the 0:22:23.160 --> 0:22:26.480 ability for the defense to cross examine the witness for 0:22:26.480 --> 0:22:29.280 the very reason you mentioned earlier, which is when the 0:22:29.400 --> 0:22:32.280 statement was made, was not even in the context of 0:22:32.320 --> 0:22:35.240 another trial where it was said that the cross examination 0:22:35.320 --> 0:22:38.119 by some other lawyer. It was simply a statement that 0:22:38.200 --> 0:22:41.160 was necessary in order to allow that defendant to enter 0:22:41.200 --> 0:22:43.560 a guilty plea, and it was not in any way 0:22:43.640 --> 0:22:47.639 challenged by any other lawyer as to its veracity or 0:22:47.680 --> 0:22:51.680 its completeness, And there were other defenses available. Even if 0:22:51.680 --> 0:22:54.560 the defendant in that case did possess the other handgun, 0:22:54.800 --> 0:22:58.920 there was no testimony about whether he possessed other handguns, 0:22:59.040 --> 0:23:01.000