1
00:00:03,200 --> 00:00:25,480
Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.

2
00:00:27,880 --> 00:00:32,559
Speaker 1: Prince was captured on canvas by Andy Warhol in a

3
00:00:32,680 --> 00:00:37,160
Speaker 1: series of silk screen artworks stylized variations on a photograph

4
00:00:37,240 --> 00:00:40,800
Speaker 1: of the rock star. The legal battle over Warhol's famed

5
00:00:40,840 --> 00:00:44,640
Speaker 1: Prince series didn't begin until after both their deaths, and

6
00:00:44,800 --> 00:00:48,840
Speaker 1: this March, photographer Lynn Goldsmith convinced the Second Circuit Court

7
00:00:48,880 --> 00:00:52,800
Speaker 1: of Appeals that Warhol's print series was not fair use

8
00:00:53,000 --> 00:00:56,320
Speaker 1: and infringed the copyright of her photo of Prince. The

9
00:00:56,400 --> 00:01:00,840
Speaker 1: Second Circuit decided to revisit that controversial vision after the

10
00:01:00,880 --> 00:01:06,039
Speaker 1: Supreme Court's landmark ruling about fair use in Google versus Oracle. However,

11
00:01:06,080 --> 00:01:09,560
Speaker 1: this week the Second Circuit basically said we were right

12
00:01:09,640 --> 00:01:12,000
Speaker 1: the first time. Joining me to put this all in

13
00:01:12,040 --> 00:01:16,280
Speaker 1: perspective is intellectual property litigator Terence Ross, a partner at

14
00:01:16,319 --> 00:01:21,000
Speaker 1: Captain Uten, Rosenman Terry. Give us the background of the case, So, June,

15
00:01:21,040 --> 00:01:24,560
Speaker 1: the plaintiff this lawsuit is Lynn Goldsmith, TUSO sort of

16
00:01:24,600 --> 00:01:30,400
Speaker 1: prominent photographer and in taken a series of photographs of

17
00:01:30,480 --> 00:01:34,080
Speaker 1: the musical artist Prince, and those photographs are relatively well known.

18
00:01:34,200 --> 00:01:37,800
Speaker 1: At some point After that, Andy Warhol did a very

19
00:01:37,840 --> 00:01:43,280
Speaker 1: impressionistic work of Prince that was based unabashed lee on

20
00:01:43,440 --> 00:01:48,960
Speaker 1: her photograph from after his death. In two thousands sixteen,

21
00:01:49,160 --> 00:01:52,760
Speaker 1: Vanity Be Fair used on its cover one of those

22
00:01:52,880 --> 00:01:58,600
Speaker 1: Andy Warhol prints of Prince. The artists and Lynn Goldsmith sued,

23
00:01:58,960 --> 00:02:03,040
Speaker 1: alleging that the constituted copyright infringement because they did not

24
00:02:03,160 --> 00:02:06,600
Speaker 1: have her authorization to use what she believed was her work.

25
00:02:06,880 --> 00:02:11,160
Speaker 1: The Andy Warhol Foundation, which controls all of his works,

26
00:02:11,560 --> 00:02:15,840
Speaker 1: argued that what Andy Warhol had done with her photograph

27
00:02:16,320 --> 00:02:20,919
Speaker 1: was transformative and therefore the fair use defense protected against

28
00:02:21,000 --> 00:02:26,440
Speaker 1: any copyright infringement, and that argument prevailed in the district

29
00:02:26,440 --> 00:02:30,280
Speaker 1: court the lower court lying Goldsmith appealed the decision to

30
00:02:30,440 --> 00:02:33,520
Speaker 1: the Second Circuit, which is the appellate court for New

31
00:02:33,600 --> 00:02:37,000
Speaker 1: York and Connecticut, and the Second Circuit agreed with her.

32
00:02:37,280 --> 00:02:39,639
Speaker 1: They said fair use defense would not apply here because

33
00:02:39,800 --> 00:02:44,000
Speaker 1: what Andy Warhol had done to her photograph was not transformative.

34
00:02:44,240 --> 00:02:47,120
Speaker 1: After that decision came down, the United States Supreme Court

35
00:02:47,280 --> 00:02:51,359
Speaker 1: issued its ruling in the Google versus Oracle case, is

36
00:02:51,400 --> 00:02:54,840
Speaker 1: also a copyright decision, although involving source code in the

37
00:02:54,919 --> 00:02:57,760
Speaker 1: computer context. As a result of that decision in the

38
00:02:57,760 --> 00:03:00,800
Speaker 1: Spring Court, the Andy Warhol Foundation went back to the

39
00:03:00,840 --> 00:03:04,880
Speaker 1: Second Circuit and asked the Second Circuit to reconsider its

40
00:03:04,960 --> 00:03:08,680
Speaker 1: decision in light of the new Supreme Court ruling and

41
00:03:08,760 --> 00:03:11,760
Speaker 1: to see if they might come out in a different

42
00:03:11,800 --> 00:03:15,160
Speaker 1: manner on the fair use question. So the Second Circuit

43
00:03:15,919 --> 00:03:20,200
Speaker 1: considers this again but comes to the same conclusion. Did

44
00:03:20,200 --> 00:03:24,000
Speaker 1: they really take Google Coracle into consideration? Well, I think

45
00:03:24,000 --> 00:03:26,720
Speaker 1: they did take it into consideration. I think what happened

46
00:03:26,720 --> 00:03:31,080
Speaker 1: here is that when Google the Oracle first was issued

47
00:03:31,120 --> 00:03:34,960
Speaker 1: by the Supreme Court, a lot of people, including copyright practitioners,

48
00:03:35,160 --> 00:03:38,640
Speaker 1: did not fully grasp the import of it. The media

49
00:03:38,760 --> 00:03:41,520
Speaker 1: certainly treated it as if it was a case that

50
00:03:41,640 --> 00:03:44,760
Speaker 1: changed copyright law, and I think the media was more

51
00:03:44,840 --> 00:03:48,680
Speaker 1: focused on the result of the decision than on what

52
00:03:48,760 --> 00:03:51,960
Speaker 1: the decision actually said. And because of the sheer length

53
00:03:51,960 --> 00:03:53,760
Speaker 1: of it, I think it took time for people to

54
00:03:54,280 --> 00:03:56,920
Speaker 1: read and understand and comprehend it and appreciate what the

55
00:03:56,920 --> 00:03:59,880
Speaker 1: Supreme Court was saying. So the Second Circuit receives this

56
00:04:00,040 --> 00:04:03,520
Speaker 1: request from the Andy Warhol Foundation, saying, the Spring Court's

57
00:04:03,520 --> 00:04:06,760
Speaker 1: new decision and Googy Oracle is changes everything in the

58
00:04:06,760 --> 00:04:09,360
Speaker 1: copyright field for fair use, you gotta go back and

59
00:04:09,400 --> 00:04:12,080
Speaker 1: rethink it, and without really taking the time to consider

60
00:04:12,080 --> 00:04:14,800
Speaker 1: whether or not that was true, Second Circuit granted the

61
00:04:14,840 --> 00:04:18,039
Speaker 1: request for rehearing. They then took brief from both the

62
00:04:18,080 --> 00:04:21,919
Speaker 1: parties on why Google the Oracle was meaningful to the

63
00:04:22,120 --> 00:04:25,359
Speaker 1: dispute and after thinking about it and the inclusion, you know,

64
00:04:25,520 --> 00:04:30,279
Speaker 1: Google resorcle wasn't as game changing as some people were

65
00:04:30,279 --> 00:04:33,400
Speaker 1: representing it to be and certainly did not change anything

66
00:04:33,480 --> 00:04:36,720
Speaker 1: in this particular case. When we spoke about this last

67
00:04:36,839 --> 00:04:41,280
Speaker 1: I was astonished that the Second Circuit unanimously found that

68
00:04:41,400 --> 00:04:46,279
Speaker 1: Andy Warhol's work was not transformative. I mean, he transformed

69
00:04:46,320 --> 00:04:49,760
Speaker 1: to Campbell soup can and this print series looks so

70
00:04:49,839 --> 00:04:53,080
Speaker 1: different from the photograph to me at least, So I

71
00:04:53,120 --> 00:04:55,800
Speaker 1: won't disagree with you because I'm not an art critic.

72
00:04:56,320 --> 00:04:59,559
Speaker 1: The problem the Second Circuit had with what the trial

73
00:04:59,600 --> 00:05:01,760
Speaker 1: court and it just came straight out and said this

74
00:05:02,000 --> 00:05:05,400
Speaker 1: that the District Court played art critic in this case

75
00:05:05,560 --> 00:05:08,680
Speaker 1: and that we have cautioned the Second Started has cautioned

76
00:05:08,960 --> 00:05:13,840
Speaker 1: since nineteen twenty trial judges should not be art critics

77
00:05:13,920 --> 00:05:17,120
Speaker 1: or music critics. They are not allowed to use their

78
00:05:17,240 --> 00:05:19,960
Speaker 1: view of whether or not a piece of art is

79
00:05:20,000 --> 00:05:24,239
Speaker 1: transformative as a determinative. In essence, the Court was saying, look,

80
00:05:24,680 --> 00:05:27,719
Speaker 1: we think you've got to take an approach that does

81
00:05:27,760 --> 00:05:31,359
Speaker 1: not require the court to be an expert, because courts

82
00:05:31,400 --> 00:05:35,479
Speaker 1: are not experts. Whether it comes to the literary, publishing, music,

83
00:05:35,520 --> 00:05:38,960
Speaker 1: publishing art, they're not experts. You can't do what you did.

84
00:05:39,120 --> 00:05:42,360
Speaker 1: And then they pointed to a whole bunch of similarities

85
00:05:42,360 --> 00:05:48,560
Speaker 1: between the photo of Prince and Andy Warhol's rendering of Prince,

86
00:05:48,880 --> 00:05:53,880
Speaker 1: including the way his hair was parted and portrayed. That

87
00:05:54,120 --> 00:05:57,160
Speaker 1: was a counterbalance to what the District Court have pointed out,

88
00:05:57,200 --> 00:05:59,440
Speaker 1: which you just now June pointed out. But isn't the

89
00:05:59,480 --> 00:06:03,440
Speaker 1: Second Circuit in making that decision also being an art critic,

90
00:06:03,600 --> 00:06:06,520
Speaker 1: One could certainly argue that that's true that at some

91
00:06:06,600 --> 00:06:09,400
Speaker 1: point or other somebody's playing art critic. Here it goes

92
00:06:09,440 --> 00:06:12,680
Speaker 1: to the nature of the test. In order for fair

93
00:06:12,800 --> 00:06:15,880
Speaker 1: use to apply. There's a four factor test. And here

94
00:06:16,120 --> 00:06:19,000
Speaker 1: the key again focused on by the Second Circuit, and

95
00:06:19,080 --> 00:06:21,640
Speaker 1: the Supreme Court has said this itself in previous cases,

96
00:06:22,040 --> 00:06:24,480
Speaker 1: is whether or not the work is transformative, because if

97
00:06:24,680 --> 00:06:28,920
Speaker 1: the allegedly infringy work is transformative, whatever that means, then

98
00:06:29,279 --> 00:06:32,800
Speaker 1: the fair use arguably should apply, notwithstanding how the other

99
00:06:32,839 --> 00:06:36,400
Speaker 1: three factors come out. And that's the real problem. Once

100
00:06:36,440 --> 00:06:40,000
Speaker 1: we bought into this linguistic box of whether or not

101
00:06:40,160 --> 00:06:43,200
Speaker 1: something was transformative or not, words which by the way,

102
00:06:43,279 --> 00:06:47,839
Speaker 1: are not in the statute. But once we've applied those

103
00:06:47,920 --> 00:06:52,520
Speaker 1: judicially created word transformative to this, you get into a

104
00:06:52,600 --> 00:06:55,520
Speaker 1: box as to who makes that decisions and how do

105
00:06:55,560 --> 00:06:58,320
Speaker 1: you go about making that decision, especially when it comes

106
00:06:58,320 --> 00:07:02,360
Speaker 1: to art or music, which are inherently creative processes on

107
00:07:02,400 --> 00:07:05,520
Speaker 1: which even critics can disagree. Were you surprised that the

108
00:07:05,600 --> 00:07:08,800
Speaker 1: Second Circuit said we were right the first time? I

109
00:07:08,839 --> 00:07:12,600
Speaker 1: think everyone was surprised by the decision that just came

110
00:07:12,600 --> 00:07:15,360
Speaker 1: out from the Second Circuit. It seemed to me that

111
00:07:15,400 --> 00:07:19,600
Speaker 1: the only reason to grant a rehearing, indeed a rehearing

112
00:07:19,680 --> 00:07:24,040
Speaker 1: specifically directed at how Google the Oracle impacted the case,

113
00:07:24,640 --> 00:07:27,480
Speaker 1: was to say, we got it wrong, and the Supreme

114
00:07:27,520 --> 00:07:29,920
Speaker 1: Court has now showed us the way, and we're going

115
00:07:29,960 --> 00:07:33,120
Speaker 1: to change course and reverse ourselves. And they did not

116
00:07:33,240 --> 00:07:35,760
Speaker 1: do that. At the Supreme Court, they have a doctrine

117
00:07:35,760 --> 00:07:38,200
Speaker 1: where sometimes they will agree to hear case, and then

118
00:07:38,200 --> 00:07:40,400
Speaker 1: after really studying it carefully and thinking about it, they go,

119
00:07:40,640 --> 00:07:42,800
Speaker 1: you know, this was a mistake, and they dismiss it

120
00:07:42,880 --> 00:07:46,680
Speaker 1: as improvidently granted. And that's what the Second Circuit probably

121
00:07:46,680 --> 00:07:49,680
Speaker 1: should have done here, is simply say, you know, we

122
00:07:49,680 --> 00:07:52,480
Speaker 1: were right the first time. Google the oracle, doesn't change

123
00:07:52,520 --> 00:07:55,320
Speaker 1: the law and leave it at that. Instead, they decided

124
00:07:55,400 --> 00:07:58,720
Speaker 1: to go through with a decision after receiving all the

125
00:07:58,760 --> 00:08:02,600
Speaker 1: papers on rehearing in which they reiterated what they've said before.

126
00:08:02,680 --> 00:08:06,720
Speaker 1: But calling out the googy oracle requires a context specific

127
00:08:06,720 --> 00:08:09,640
Speaker 1: application of fair use doctrine, and in the context of

128
00:08:09,680 --> 00:08:13,200
Speaker 1: this particular case, there is no fair use. The Warhol

129
00:08:13,240 --> 00:08:16,800
Speaker 1: Foundation says it hasn't decided what it's going to do next.

130
00:08:17,040 --> 00:08:19,960
Speaker 1: They could take this to the Supreme Court, so yes,

131
00:08:20,040 --> 00:08:22,400
Speaker 1: they could. They have to options. The first option is

132
00:08:22,440 --> 00:08:25,720
Speaker 1: they could ask for a rehearing on bonk of the

133
00:08:25,800 --> 00:08:29,000
Speaker 1: Second Circuit. What that would mean is that they think

134
00:08:29,240 --> 00:08:32,400
Speaker 1: that this particular three judge panel of the Second Circuit

135
00:08:32,559 --> 00:08:36,760
Speaker 1: has gotten it wrong, that previous cases in the Second

136
00:08:36,760 --> 00:08:41,240
Speaker 1: Circuit dictate a different outcome. And the way it works

137
00:08:41,320 --> 00:08:43,599
Speaker 1: is that a three judge panel is not allowed to

138
00:08:43,760 --> 00:08:46,479
Speaker 1: change the law in a circuit, they have to abide

139
00:08:46,480 --> 00:08:49,959
Speaker 1: by prior cases, and in particular, there's the Crew case

140
00:08:50,160 --> 00:08:54,200
Speaker 1: going back a few years which involved changing photographs of

141
00:08:54,240 --> 00:08:58,680
Speaker 1: some Rastafarians in Jamaica by adding doodles and drawings onto

142
00:08:58,720 --> 00:09:01,600
Speaker 1: the photographs and then selling them as independent works of art.

143
00:09:01,720 --> 00:09:04,120
Speaker 1: And in that case, the Second Circuit had ruled that

144
00:09:04,200 --> 00:09:06,920
Speaker 1: that constituted fair use, there was no infringement. And so

145
00:09:07,280 --> 00:09:11,240
Speaker 1: the option that the Andy Warhol Foundation has here is

146
00:09:11,320 --> 00:09:14,600
Speaker 1: to ask for rehearing on bond and specifically say, we

147
00:09:14,720 --> 00:09:18,360
Speaker 1: think this decision violates the Second Circuits president in that

148
00:09:18,440 --> 00:09:22,440
Speaker 1: Crew case another decision, and if a majority of the

149
00:09:22,800 --> 00:09:25,960
Speaker 1: all the judges on the Second Circuit agree that there's

150
00:09:26,000 --> 00:09:28,480
Speaker 1: a problem here, that the two cases need to be

151
00:09:28,520 --> 00:09:32,000
Speaker 1: reconciled in some way, they can grant a rehearing un bond,

152
00:09:32,120 --> 00:09:34,760
Speaker 1: get new briefing, have a new oral argument in front

153
00:09:34,800 --> 00:09:37,200
Speaker 1: of all thirteen judges, and then they will issue a

154
00:09:37,200 --> 00:09:40,840
Speaker 1: new decision that incorporates the views of all the judges

155
00:09:40,840 --> 00:09:43,240
Speaker 1: on the Second Circuit. And it seems to me that

156
00:09:43,240 --> 00:09:47,000
Speaker 1: that would be the most logical step for the Andy

157
00:09:47,040 --> 00:09:50,520
Speaker 1: Warhol Foundation to take here, because there is a real

158
00:09:50,679 --> 00:09:53,559
Speaker 1: question in my mind, in the mind of most copyright

159
00:09:53,600 --> 00:09:57,640
Speaker 1: practitioners as to whether this current decision between Goldsmith and

160
00:09:57,679 --> 00:10:00,839
Speaker 1: the Andy Warhol Foundation deviated from the way the Second

161
00:10:00,840 --> 00:10:03,160
Speaker 1: Circuit approached the fair use doctrine in the past. So

162
00:10:03,480 --> 00:10:07,400
Speaker 1: that's I think the strongest approach they have. If that

163
00:10:07,600 --> 00:10:11,320
Speaker 1: is denied, they then have the option of appealing to

164
00:10:11,400 --> 00:10:14,600
Speaker 1: the Supreme Court. Not that the Second Circuit cares about

165
00:10:14,640 --> 00:10:17,520
Speaker 1: my opinion, but personally, I would love it if they

166
00:10:17,520 --> 00:10:19,719
Speaker 1: took this case on Bank because I don't see how

167
00:10:19,720 --> 00:10:25,280
Speaker 1: you reconcile the Prince series not being transformative and the

168
00:10:25,360 --> 00:10:29,559
Speaker 1: Crew being transformative in June. I don't see any intellectually

169
00:10:29,600 --> 00:10:32,880
Speaker 1: principled way to distinguish the two cases. I think the

170
00:10:32,920 --> 00:10:35,760
Speaker 1: Second Circuit on Bonk has to say we got one

171
00:10:35,840 --> 00:10:38,320
Speaker 1: wrong and the yellow and right, and going forward, this

172
00:10:38,400 --> 00:10:40,160
Speaker 1: is the way things are going to be done. And

173
00:10:40,200 --> 00:10:43,280
Speaker 1: I will say this as a copyright practitioner with many

174
00:10:43,400 --> 00:10:46,559
Speaker 1: clients and cases in New York. We need some guidance

175
00:10:46,760 --> 00:10:50,640
Speaker 1: from the Second Circuit on what is fair use in

176
00:10:50,679 --> 00:10:53,720
Speaker 1: these cases, and if they are unwilling to do that,

177
00:10:54,040 --> 00:10:56,080
Speaker 1: it would be nice to get some guidance from the

178
00:10:56,080 --> 00:11:00,480
Speaker 1: Supreme Court because we are left unable to advise our clients,

179
00:11:00,600 --> 00:11:03,760
Speaker 1: often or unfortunately using weasel words and saying, well, I

180
00:11:03,800 --> 00:11:05,520
Speaker 1: could go this way, could go this way, just too

181
00:11:05,520 --> 00:11:07,480
Speaker 1: hard to tell, which doesn't help the client very much

182
00:11:07,480 --> 00:11:10,200
Speaker 1: because glinds want certainty and it's what's missing here in

183
00:11:10,200 --> 00:11:12,480
Speaker 1: the fair use areas him. It would be nice if

184
00:11:12,480 --> 00:11:14,800
Speaker 1: he's the Second Circuit of the Supreme Court gave us

185
00:11:14,840 --> 00:11:19,200
Speaker 1: some certainty. Thanks Terry. That's Terrence Ross of Captain Uchen Rosenman.

186
00:11:21,160 --> 00:11:24,240
Speaker 1: Many college students returning to the classroom this fall will

187
00:11:24,280 --> 00:11:28,280
Speaker 1: face an ultimatum get vaccinated or go home. About seven

188
00:11:28,720 --> 00:11:33,439
Speaker 1: fifty colleges and universities are requiring vaccines for students or employees,

189
00:11:33,679 --> 00:11:36,960
Speaker 1: according to a database by the Chronicle of Higher Education.

190
00:11:37,640 --> 00:11:40,439
Speaker 1: The FDA is full approval of the Fiser vaccine is

191
00:11:40,480 --> 00:11:43,640
Speaker 1: a game changer, putting the COVID vaccine on par with

192
00:11:43,720 --> 00:11:47,920
Speaker 1: the other vaccines that colleges and universities require. But COVID

193
00:11:48,000 --> 00:11:51,160
Speaker 1: vaccine mandates for students have triggered a growing wave of

194
00:11:51,240 --> 00:11:56,000
Speaker 1: lawsuits against higher education institutions. My guest is Lawrence Gostin,

195
00:11:56,120 --> 00:11:59,160
Speaker 1: director of the O'Neill Institute for National and Global Health

196
00:11:59,240 --> 00:12:04,120
Speaker 1: Law at Georgetown University. Should we expect more mandates and

197
00:12:04,160 --> 00:12:08,160
Speaker 1: more challenges to the mandates, Yes, we're going to expect both.

198
00:12:08,320 --> 00:12:10,640
Speaker 1: I think that now that the f d A as

199
00:12:10,840 --> 00:12:15,120
Speaker 1: fully licensed the Visor vaccine and soon will fully licensed

200
00:12:15,200 --> 00:12:19,560
Speaker 1: the Maderna vaccine, more and more colleges and universities, and

201
00:12:19,600 --> 00:12:24,960
Speaker 1: indeed businesses and local governments are going to require vaccines

202
00:12:25,000 --> 00:12:28,320
Speaker 1: as a condition for coming back to school or to work.

203
00:12:28,679 --> 00:12:32,440
Speaker 1: And I think that that's entirely lawful. America's of highly

204
00:12:32,640 --> 00:12:36,359
Speaker 1: litigious society, so they're going to continue to be lawsuits,

205
00:12:36,360 --> 00:12:38,800
Speaker 1: but I do foresee that the courts are going to

206
00:12:38,880 --> 00:12:42,679
Speaker 1: throw these lawsuits out, and eventually vaccine mandates are going

207
00:12:42,720 --> 00:12:46,120
Speaker 1: to becoming the norm in the United States for a

208
00:12:46,200 --> 00:12:50,000
Speaker 1: safe return to work or to the classroom. So what

209
00:12:50,120 --> 00:12:55,000
Speaker 1: are some of the arguments that are made against vaccine mandates. Well,

210
00:12:55,160 --> 00:12:58,120
Speaker 1: you know, the legal arguments are very weak. Most of

211
00:12:58,160 --> 00:13:01,240
Speaker 1: these lawsuits were predicated on the idea that it was

212
00:13:01,320 --> 00:13:05,080
Speaker 1: emergency use of authorization, so that argument melts away now

213
00:13:05,480 --> 00:13:09,720
Speaker 1: that Visor is fully licensed and soon Maderna, and so

214
00:13:10,000 --> 00:13:12,960
Speaker 1: there are very few good legal arguments. And I suppose

215
00:13:13,000 --> 00:13:15,880
Speaker 1: they could argue that colleges or businesses don't have the

216
00:13:15,960 --> 00:13:18,440
Speaker 1: power to do it. But the truth is is that

217
00:13:18,520 --> 00:13:21,360
Speaker 1: that colleges and businesses have been doing it for years,

218
00:13:21,400 --> 00:13:25,000
Speaker 1: you know, with influenza and other vaccines, and so I

219
00:13:25,040 --> 00:13:28,240
Speaker 1: don't think those arguments are very strong. Now. They're also

220
00:13:28,440 --> 00:13:32,280
Speaker 1: kind of ethical arguments that somehow this is invade the

221
00:13:32,720 --> 00:13:37,320
Speaker 1: person's freedom or liberty, And to that I just say this.

222
00:13:37,559 --> 00:13:40,520
Speaker 1: You know, anyone has the absolute right to make any

223
00:13:40,559 --> 00:13:43,440
Speaker 1: decision for their own health and safety, but they don't

224
00:13:43,440 --> 00:13:46,360
Speaker 1: have the right to expose other people to a dangerous,

225
00:13:46,360 --> 00:13:50,640
Speaker 1: infectious disease. You don't have the right to go unvaccinated

226
00:13:50,679 --> 00:13:54,600
Speaker 1: and unmasked in the crowded classroom or a crowded workspace.

227
00:13:54,840 --> 00:13:57,559
Speaker 1: That just exposes others to danger. And there's a long

228
00:13:57,679 --> 00:14:00,880
Speaker 1: tradition in the United States that you have your freedom,

229
00:14:00,880 --> 00:14:04,480
Speaker 1: but your freedom ends when you pose a significant risk

230
00:14:04,559 --> 00:14:09,040
Speaker 1: to others, and that's what unvaccinated people do. I understand

231
00:14:09,080 --> 00:14:12,439
Speaker 1: that some students are claiming they have a constitutional right

232
00:14:12,480 --> 00:14:16,000
Speaker 1: to go to college in person and unvaccinated. It's almost

233
00:14:16,040 --> 00:14:20,360
Speaker 1: a laughable legal documents. Um. You know, there is there

234
00:14:20,480 --> 00:14:23,440
Speaker 1: is no right to go to college. That's why we

235
00:14:23,440 --> 00:14:27,840
Speaker 1: have an admission system and why we give colleges discretion

236
00:14:27,880 --> 00:14:31,120
Speaker 1: as who they admit and who they don't. And colleges

237
00:14:31,200 --> 00:14:34,120
Speaker 1: also have an absolute right, not just a right, but

238
00:14:34,160 --> 00:14:38,680
Speaker 1: a responsibility UM to create a safe workplace. Remember they're

239
00:14:39,000 --> 00:14:42,480
Speaker 1: they're acting in local parentice and they need to ensure

240
00:14:42,520 --> 00:14:46,880
Speaker 1: that these young people under their care are safe and secure. UM.

241
00:14:46,960 --> 00:14:49,240
Speaker 1: So there is and there is no constitutional right to

242
00:14:49,320 --> 00:14:51,920
Speaker 1: do that. I don't know. It's almost a made up right.

243
00:14:52,520 --> 00:14:54,560
Speaker 1: But I suppose you can claim to have a right

244
00:14:54,600 --> 00:14:57,360
Speaker 1: to do anything. And you know, the truth is that

245
00:14:57,520 --> 00:15:02,440
Speaker 1: nobody's denying them the right to go to college or university.

246
00:15:02,520 --> 00:15:06,120
Speaker 1: There literally just saying, you know, if you want to go,

247
00:15:06,200 --> 00:15:09,360
Speaker 1: you have to go safely. Are these challenges new or

248
00:15:09,400 --> 00:15:12,640
Speaker 1: are these challenges similar to one's made in the past

249
00:15:12,800 --> 00:15:16,600
Speaker 1: other vaccines. You mentioned influenza, but maybe measles moms, you know,

250
00:15:16,760 --> 00:15:20,240
Speaker 1: are these the same kind of challenges? Yes, but I

251
00:15:20,280 --> 00:15:23,200
Speaker 1: have to say that all of these vaccine challenges have

252
00:15:23,600 --> 00:15:26,720
Speaker 1: really been unsuccessful. And you mentioned measles and moms. The

253
00:15:26,880 --> 00:15:31,240
Speaker 1: Childhood Immunization Schedule that is required for students to go

254
00:15:31,320 --> 00:15:34,920
Speaker 1: to k through twelve courts of upheld them. Supreme Court

255
00:15:35,000 --> 00:15:38,480
Speaker 1: is upheld it twice. And so these are not good

256
00:15:38,560 --> 00:15:41,760
Speaker 1: legal arguments. But the truth is is that I've never

257
00:15:41,800 --> 00:15:45,960
Speaker 1: seen an epidemic that was politicized the way that COVID

258
00:15:46,000 --> 00:15:50,040
Speaker 1: nineteen is. People, except that you need to get vaccinated,

259
00:15:50,560 --> 00:15:55,600
Speaker 1: you know, for measles, months rubella, um and other infectious diseases.

260
00:15:56,240 --> 00:15:59,920
Speaker 1: And there's no argument about it, because that we live

261
00:16:00,000 --> 00:16:03,560
Speaker 1: than a well ordered society where we look out for

262
00:16:03,680 --> 00:16:07,640
Speaker 1: one another. But this is just every neutral public health

263
00:16:07,720 --> 00:16:14,160
Speaker 1: tool is now controversial. Masks are controversial, vaccines are controversial,

264
00:16:14,880 --> 00:16:19,880
Speaker 1: lockdowns were controversial, and basically, you know, nobody wants to

265
00:16:19,960 --> 00:16:23,920
Speaker 1: at least I don't to shame and blame people who

266
00:16:23,920 --> 00:16:26,760
Speaker 1: are unvaccinated, and I don't want to take away their

267
00:16:26,760 --> 00:16:30,720
Speaker 1: health insurance or make it more expensive for them. Many

268
00:16:30,760 --> 00:16:33,760
Speaker 1: of them are really decent, good Americans trying to make

269
00:16:33,800 --> 00:16:36,680
Speaker 1: the best decision for themselves and their families. But at

270
00:16:36,720 --> 00:16:38,960
Speaker 1: the end of the day, we need to make sure

271
00:16:39,640 --> 00:16:41,840
Speaker 1: that we look out for one another. And it's not

272
00:16:41,920 --> 00:16:46,320
Speaker 1: all about me, me, me, It's about what ethical obligations

273
00:16:46,360 --> 00:16:50,720
Speaker 1: I have to my family, to my neighbors, to my

274
00:16:50,800 --> 00:16:53,520
Speaker 1: country so that we can all be safe and secure.

275
00:16:54,120 --> 00:16:58,680
Speaker 1: And so vaccines, masks and other things they're just public

276
00:16:58,680 --> 00:17:02,800
Speaker 1: health tools. They're not Republican, they're not Democrats, they're not

277
00:17:02,840 --> 00:17:08,439
Speaker 1: trying to punish or blame anyone. They're literally just scientific

278
00:17:08,520 --> 00:17:13,160
Speaker 1: tools that we need to ensure a greater level of

279
00:17:13,160 --> 00:17:16,399
Speaker 1: health and safety and security, which is what all we want,

280
00:17:16,960 --> 00:17:20,399
Speaker 1: and it just doesn't make sense, um for us to

281
00:17:20,520 --> 00:17:25,159
Speaker 1: litigate over it universities. Earlier this month, the U. S.

282
00:17:25,200 --> 00:17:28,000
Speaker 1: Court of Appeals for the Seventh Circuit refused to block

283
00:17:28,160 --> 00:17:32,199
Speaker 1: Indiana University's vaccine mandate. What can we read into the

284
00:17:32,240 --> 00:17:37,159
Speaker 1: fact that Supreme Court Justice Amy Coney Barrett refused without explanation,

285
00:17:37,240 --> 00:17:40,560
Speaker 1: to block the school's mandate. I mean, I think we

286
00:17:40,640 --> 00:17:45,600
Speaker 1: can just simply assume that even one of the most

287
00:17:45,640 --> 00:17:50,960
Speaker 1: conservative justices that we have, justice called me Barrett, is

288
00:17:51,000 --> 00:17:58,320
Speaker 1: not prepared to strike down a provision that's clearly lawful,

289
00:17:59,000 --> 00:18:02,320
Speaker 1: um and it's clearly needed for the public's health. So

290
00:18:02,400 --> 00:18:06,560
Speaker 1: now a dozen states have bands on vaccine mandates that

291
00:18:06,640 --> 00:18:11,280
Speaker 1: apply to institutions of higher education. How does that play in?

292
00:18:11,480 --> 00:18:15,160
Speaker 1: What part does that play in? This plays an important part.

293
00:18:15,359 --> 00:18:18,360
Speaker 1: You know. I've worked in public health for over thirty years,

294
00:18:18,440 --> 00:18:22,560
Speaker 1: and I've seen many, many times when states or political

295
00:18:22,640 --> 00:18:27,600
Speaker 1: leaders have failed to take necessary and important public health

296
00:18:27,920 --> 00:18:30,800
Speaker 1: action to protect the public. But I don't think I've

297
00:18:30,920 --> 00:18:37,479
Speaker 1: ever seen states and governors and legislators actually blocking local

298
00:18:37,560 --> 00:18:43,359
Speaker 1: governments and school districts from protecting themselves. It just makes

299
00:18:43,400 --> 00:18:50,040
Speaker 1: no sense to actually ban something that the public relies

300
00:18:50,119 --> 00:18:52,879
Speaker 1: on for its health and safety, and that there's an

301
00:18:52,920 --> 00:18:58,439
Speaker 1: overwhelming scientific insensus um that it's vital and important and

302
00:18:58,520 --> 00:19:03,720
Speaker 1: safe vaccine and masks. And why you know an elected

303
00:19:03,800 --> 00:19:07,760
Speaker 1: political leader would betray the public trusts that way. I

304
00:19:07,840 --> 00:19:13,160
Speaker 1: have no idea. It just seems like a deep portrayal

305
00:19:14,040 --> 00:19:17,960
Speaker 1: of their oath of authors. Have I said that? You know,

306
00:19:18,200 --> 00:19:24,000
Speaker 1: states do have very wide powers to regulate colleges, universities,

307
00:19:24,040 --> 00:19:28,000
Speaker 1: and businesses that are operating solely within their state, and

308
00:19:28,080 --> 00:19:31,320
Speaker 1: probably many of these are going to be upheld. So

309
00:19:31,359 --> 00:19:33,439
Speaker 1: you think that if one of these cases goes to

310
00:19:33,560 --> 00:19:37,440
Speaker 1: court in a state where there's a ban on vaccine mandates,

311
00:19:37,480 --> 00:19:41,480
Speaker 1: that the ban will win out over the vaccine mandates. Well,

312
00:19:41,520 --> 00:19:44,920
Speaker 1: on the basis that states have the right to regulate businesses,

313
00:19:45,000 --> 00:19:49,800
Speaker 1: and states have the right to require local jurisdictions, counties, cities,

314
00:19:49,840 --> 00:19:52,760
Speaker 1: school boards to do what the state wants, and state

315
00:19:52,960 --> 00:19:56,440
Speaker 1: does have that power. You know. Having said all that,

316
00:19:56,480 --> 00:20:00,480
Speaker 1: you know they're in Texas. UM. There's a wide spread

317
00:20:00,720 --> 00:20:07,880
Speaker 1: revolt against Governor Abbots UM ban on masking and vaccinations

318
00:20:07,920 --> 00:20:12,240
Speaker 1: and schools and other places UM. And many are defined

319
00:20:13,040 --> 00:20:16,480
Speaker 1: the governor's orders, and there's been a lot of litigation

320
00:20:17,040 --> 00:20:21,040
Speaker 1: so far. The courts have not been prepared to uphold

321
00:20:21,359 --> 00:20:26,320
Speaker 1: Governor Abbots order UM. And they've said, you know, why

322
00:20:26,440 --> 00:20:32,800
Speaker 1: is the governor preventing local officials and school districts from

323
00:20:32,840 --> 00:20:36,640
Speaker 1: doing what they think is necessary to protect the health

324
00:20:36,720 --> 00:20:40,199
Speaker 1: of students and others. But ultimately, I mean, I'm not

325
00:20:40,280 --> 00:20:43,240
Speaker 1: sure how the courts will decide. On a policy basis,

326
00:20:43,320 --> 00:20:46,240
Speaker 1: it's crazy and should be struck down. But on a

327
00:20:46,320 --> 00:20:52,719
Speaker 1: legal basis, state legislators and governors do have authority over businesses.

328
00:20:52,760 --> 00:20:55,600
Speaker 1: They can regulate them. They even locked them down during

329
00:20:55,600 --> 00:20:58,800
Speaker 1: the pandemic, and courts upheld that. So it seems to

330
00:20:58,840 --> 00:21:05,520
Speaker 1: me that these are extraordinarily unwise laws and UM and

331
00:21:05,800 --> 00:21:10,280
Speaker 1: executive orders UM. But in many states they'll probably be upheld.

332
00:21:11,080 --> 00:21:14,520
Speaker 1: So that would give the state the power to tell

333
00:21:14,560 --> 00:21:18,400
Speaker 1: a university that you have to admit this student who

334
00:21:18,440 --> 00:21:24,480
Speaker 1: is not vaccinated. Yes, ultimately, because if if the college

335
00:21:24,520 --> 00:21:28,400
Speaker 1: is not able to require proof of vaccination under state law,

336
00:21:28,960 --> 00:21:33,280
Speaker 1: just like you know the state public health departments that rules.

337
00:21:33,440 --> 00:21:36,040
Speaker 1: You know, they say you need to have certain social

338
00:21:36,080 --> 00:21:41,880
Speaker 1: distancing in schools, or you can't gather at certain density levels,

339
00:21:42,040 --> 00:21:45,959
Speaker 1: or that, um, there needs to be indoor mask mandates.

340
00:21:45,960 --> 00:21:48,240
Speaker 1: Those are all things that that the state can do.

341
00:21:48,680 --> 00:21:52,000
Speaker 1: They're wise, they're sensible, you know. But the question is

342
00:21:52,080 --> 00:21:55,359
Speaker 1: really boils down to this, can the state do something

343
00:21:55,400 --> 00:21:59,440
Speaker 1: that's crazy if it's within its powers and the course

344
00:21:59,480 --> 00:22:01,840
Speaker 1: can have to the side that, but their judges and

345
00:22:01,920 --> 00:22:05,159
Speaker 1: they can't be basing it upon policies. They have to

346
00:22:05,840 --> 00:22:07,760
Speaker 1: look at what the powers of the state are in

347
00:22:07,760 --> 00:22:14,480
Speaker 1: the state, as I say, you know, locked entire cities down, um.

348
00:22:14,600 --> 00:22:16,800
Speaker 1: And if they can do that, they can pretty much

349
00:22:16,840 --> 00:22:19,840
Speaker 1: do anything. So then what's going to end up happening

350
00:22:19,880 --> 00:22:23,760
Speaker 1: is you're going to have a patchwork of different laws

351
00:22:23,800 --> 00:22:27,040
Speaker 1: across the country. We do already. We do have a

352
00:22:27,040 --> 00:22:30,560
Speaker 1: patchwork of different laws across the country. You know, many

353
00:22:30,560 --> 00:22:34,119
Speaker 1: many parts of the country require indoor masking, some don't.

354
00:22:34,400 --> 00:22:38,080
Speaker 1: There is no national uniformity and consistency. And then you're

355
00:22:38,080 --> 00:22:43,280
Speaker 1: dealing with a pandemic Um, you know, the stars kovid

356
00:22:43,359 --> 00:22:46,879
Speaker 1: to pathogen. You know, it doesn't know that it's in

357
00:22:47,000 --> 00:22:50,840
Speaker 1: Texas or Florida or New York, and it's going to

358
00:22:50,960 --> 00:22:55,199
Speaker 1: spread either way. And so we we need, you know,

359
00:22:55,480 --> 00:23:02,440
Speaker 1: national consistency and uniformity based up on the tenants of science.

360
00:23:03,040 --> 00:23:05,480
Speaker 1: You know, we have to remember that there is really

361
00:23:05,520 --> 00:23:09,879
Speaker 1: good scientistic evidence that vaccines are safe and effective and

362
00:23:09,920 --> 00:23:14,680
Speaker 1: that masks work to reduce spread of the infection, including

363
00:23:14,720 --> 00:23:17,159
Speaker 1: the delta variant. Let's say it goes to court in

364
00:23:17,160 --> 00:23:19,600
Speaker 1: the states that the band the COVID vaccine, if these

365
00:23:19,640 --> 00:23:24,560
Speaker 1: same states allow vaccine mandates for the childhood illnesses, how

366
00:23:24,560 --> 00:23:28,840
Speaker 1: do they square that discrepancy? Yeah, I mean they shouldn't

367
00:23:29,720 --> 00:23:33,200
Speaker 1: obviously distinguished I mean I suppose they could have distinguished

368
00:23:33,880 --> 00:23:39,000
Speaker 1: before because these childhood vaccines were fully licensed. In COVID

369
00:23:39,160 --> 00:23:44,040
Speaker 1: nineteen vaccines were not. But now that distinction is vanished. Um,

370
00:23:44,400 --> 00:23:48,399
Speaker 1: so you know, from a rational point of view, the

371
00:23:48,480 --> 00:23:53,199
Speaker 1: distinction really has no merit um. But that's what the

372
00:23:53,240 --> 00:23:55,880
Speaker 1: states have done. You know, it's in many cases it's

373
00:23:55,920 --> 00:23:59,240
Speaker 1: been a law that's been passed by the state legislature

374
00:23:59,280 --> 00:24:02,280
Speaker 1: and signed by the governor, and the state does have

375
00:24:02,320 --> 00:24:07,520
Speaker 1: a lot of authority to regulate colleges, universities, businesses that

376
00:24:07,600 --> 00:24:12,120
Speaker 1: are operating wholly within within the state. UM I suppose

377
00:24:12,200 --> 00:24:15,600
Speaker 1: the state Supreme Court could say, well, listen, you're acting

378
00:24:16,720 --> 00:24:20,760
Speaker 1: in an arbitrary and irrational manner and strike it down

379
00:24:20,800 --> 00:24:24,960
Speaker 1: on that basis, But they tend to give the legislature

380
00:24:25,080 --> 00:24:30,960
Speaker 1: wide discretion in setting policy. This policy, as I say,

381
00:24:31,080 --> 00:24:33,119
Speaker 1: you know, just not to put too fine a point

382
00:24:33,160 --> 00:24:37,480
Speaker 1: on it, is nuts. But there you go. Thanks for

383
00:24:37,520 --> 00:24:41,159
Speaker 1: being on the Bloomberg Glass Show. That's Lawrence Gustin, director

384
00:24:41,160 --> 00:24:43,560
Speaker 1: of the O'Neil Institute for a National and Global Health

385
00:24:43,640 --> 00:24:46,960
Speaker 1: Law at Georgetown University. And that's it for the edition

386
00:24:46,960 --> 00:24:49,560
Speaker 1: of the Bloomberg Glass Show. I'm June Grosso and you're

387
00:24:49,600 --> 00:24:50,760
Speaker 1: listening to Bloomberg