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Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.

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Speaker 2: A group of retired federal judges is speaking out against

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Speaker 2: the latest attack on US citizens who weren't born in

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Speaker 2: this country. Republican Representative Pete stauborough Minnesota has introduced legislation

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Speaker 2: that requires all federal judges to be born in this country,

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Speaker 2: and Representative Nancy Mace of South Carolina has introduced joint

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Speaker 2: resolutions proposing a constitutional amendment to require not only judges,

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Speaker 2: but also senators, representatives, and other federal officers to be

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Speaker 2: natural born US citizens. Keep our Republic's Article three Coalition,

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Speaker 2: a group of retired federal judges appointed by presidents from

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Speaker 2: both parties, says the proposals are contrary to the nation's

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Speaker 2: constitutional tradition and that judges should be evaluated by their integrity, judgment,

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Speaker 2: and fidelity to the law, not by their place of birth.

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Speaker 2: Joining me as a member of the Article three Coalition,

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Speaker 2: Judge Jeremy Foegel, formerly of the District Court for the

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Speaker 2: Northern District of California. Judge Fogel, what do you think

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Speaker 2: is the genesis of these proposals, especially the proposal for

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Speaker 2: a constitutional amendment by Representative Mace.

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Speaker 3: There were two decisions in cases having to do with

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Speaker 3: immigration that were made by judges who were naturalized citizens,

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Speaker 3: and she and various other people criticized those decisions because

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Speaker 3: they were adverse to immigration policies they supported. And in

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Speaker 3: the course of criticizing the decisions, they pointed out that

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Speaker 3: the judges were not native born citizens. One is Judge

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Speaker 3: Supman in Illinois and then Judge Tahwany in Massachusetts. And

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Speaker 3: the statement was, well, what do you expect is they

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Speaker 3: weren't born here. They don't understand. I mean, that's why

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Speaker 3: they're ruling against these immigration policies that we support. So

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Speaker 3: that was what happened, and I think the reaction on

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Speaker 3: the part of our group was, you know, you can

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Speaker 3: criticize decisions all you want. That's people's constitutional right. It's

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Speaker 3: free speech, and it's entirely appropriate. But to attack individual

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Speaker 3: judges because of where they were born and what their

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Speaker 3: heritage is is really pretty it's really out of bound.

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Speaker 3: And it happened right around the fourth of July. You know.

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Speaker 3: So we have the celebration of our independence in two

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Speaker 3: hundred and fifty years of independence and the Constitution which

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Speaker 3: we're going to be celebrating in September, and I think

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Speaker 3: it just kind of provoked a real strong reaction among

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Speaker 3: our retired judges groups. We just wanted to say something.

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Speaker 3: You know, it's not that we have any fear that

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Speaker 3: this resolution or the other one are actually going to

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Speaker 3: get passed by Congress, but there was just something that

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Speaker 3: was so fundamentally offensive about statements, and so that was

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Speaker 3: what prompted. And you know, the way our coalition works,

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Speaker 3: we sometimes will just circulate statements to judges and they

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Speaker 3: can join or not. This was one where we said,

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Speaker 3: we want to speak on behalf of the entire coalition,

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Speaker 3: all fifty eight judges, and we just want to give

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Speaker 3: everyone an opportunity to weigh in and suggest that that's

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Speaker 3: are too object or whatever the case may be. And

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Speaker 3: I think since we've been organized and working together, which

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Speaker 3: has been about a year and a half, that this

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Speaker 3: may have been the easiest group statement to get signatures

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Speaker 3: for it. There was a real sense that this was

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Speaker 3: just not okay, and you know, it's important that we

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Speaker 3: speak up as retired judges about it. And I think

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Speaker 3: it's also a way of supporting the judges involved. It's

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Speaker 3: not expressing agreement or disagreement with their decisions, but just

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Speaker 3: they don't deserve to be attacked on that basis. And

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Speaker 3: you know, when we did a little research, it's interesting

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Speaker 3: that we look at the judges the article three judges

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Speaker 3: who have served since the founding of the public and

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Speaker 3: were naturalized citizens. It's a pretty impressive list, and it

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Speaker 3: has no relationship to political gideology. Some of the most

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Speaker 3: prominent ones have been notably conservative, some of the other

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Speaker 3: ones who's been prominent liberal, and so there's no orientation

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Speaker 3: that attaches to being a naturalized citizen. It's just just

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Speaker 3: so we've had a lot of very distinguishers that have

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Speaker 3: been Do you.

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Speaker 2: Think they're looking at the fact that, you know, the

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Speaker 2: Constitution says the president has to be born here and

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Speaker 2: they're saying, well, let's make that judges and every member

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Speaker 2: of Congress too.

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Speaker 3: That actually cuts both ways, because when the founders wrote

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Speaker 3: the Constitution, they certainly were thinking about that, and in

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Speaker 3: seventeen eighty seven they could have very easily said, well,

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Speaker 3: you know, we want all of our elected and prominent

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Speaker 3: officials to be native born, and they didn't. They just

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Speaker 3: they just said that they wanted the president to be

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Speaker 3: and we did not include judges, they did not include

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Speaker 3: members of Congress, and you know, it's not like it

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Speaker 3: wasn't on their minds and they made a decision. So

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Speaker 3: I think we've lived with it for two hundred and

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Speaker 3: fifty years, and you know, it's it's almost a cliche

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Speaker 3: to say this is you know, this is a nation

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Speaker 3: of immigrants that's been built by immigrants, and naturalized citizens

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Speaker 3: have contributed immensely to the country in just a multitude

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Speaker 3: of ways, and so I think seizing on that is

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Speaker 3: probably not a good idea because the history is that

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Speaker 3: the founders had that qualification in mind and chose not

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Speaker 3: to include the judiciary and members of concresce. So, you know,

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Speaker 3: I don't think that these proposals are going anywhere. I

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Speaker 3: just think the fact that they were even floated was

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Speaker 3: something that especially given that we're celebrating the two and

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Speaker 3: fiftieth anniversary of the Declaration, you know, it's good to

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Speaker 3: remember what our principles are in the country, and this

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Speaker 3: one the idea that this is a country which welcomes

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Speaker 3: and this has nothing to do with controversies about legal

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Speaker 3: immigration or illegal immigration, or with immigration policy ought to be.

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Speaker 3: We've always had people coming to our country and looking

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Speaker 3: for ways to make lives here. And you know, we

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Speaker 3: have robust debates about what our laws ought to be

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Speaker 3: and how easy or how hard that ought to be.

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Speaker 3: But I don't think anybody can really argue that immigrants

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Speaker 3: have really helped to build our country and still do.

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Speaker 3: And every judge, every Article three judge, has to be

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Speaker 3: a citizen of the United States. That's a requirement, and

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Speaker 3: nobody's questioning that. But if people go through the process

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Speaker 3: to become citizens, and anybody who's been through the naturalization

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Speaker 3: process knows that it's it's actually pretty pretty rigorous, and

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Speaker 3: you have to know more about the Constitution than people

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Speaker 3: who are born here. Otherwise you don't get naturalized as

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Speaker 3: a citizen. And so just to say that people with

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Speaker 3: that background should not be judged, it's just something that

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Speaker 3: needed to be called out. I think that was the

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Speaker 3: sense of our of our group.

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Speaker 2: So I'm wondering if it's part and parcel of what

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Speaker 2: we've seen from the Trump administration, you know, with the

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Speaker 2: attack on birthright citizenship and also the instruction to Justice

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Speaker 2: Department lawyers to maximally pursue the naturalization proceedings. I mean,

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Speaker 2: before this administration, stripping citizenship has been rare. On average,

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Speaker 2: there were only eleven d naturalization cases each year from

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Speaker 2: nineteen ninety to twenty seventeen.

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Speaker 3: I think you could certainly say, you know, I'm not

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Speaker 3: in a position to speculate what they're thinking, but it's

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Speaker 3: in line with that in the sense that, you know,

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Speaker 3: I think for a long time, being a naturalized citizen

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Speaker 3: was a pretty respected status, and I mean I think

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Speaker 3: it still is among most people. And so the idea

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Speaker 3: that you would in any way kind of try to

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Speaker 3: diminish that is something new and different. And I think

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Speaker 3: including judges in that is definitely new and different. I mean,

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Speaker 3: I've never seen that. And as I said, I mean

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Speaker 3: there are judges on when you go back and actually

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Speaker 3: do the research as to who's in that group. I mean,

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Speaker 3: there are people who are really quite supportive of the

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Speaker 3: president in his policies and the administration. I mean, they

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Speaker 3: have been pretty vocal in that respect. But you know,

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Speaker 3: that group includes naturalized it. So I think the idea

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Speaker 3: that you're going to weaken that status or make it

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Speaker 3: more intingent, that is certainly something that some people in

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Speaker 3: administration have been talking about and you know, I think

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Speaker 3: you could certainly say that this is part and parcel

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Speaker 3: with that.

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Speaker 2: Please stay with me, Judge Fogel coming up next. The

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Speaker 2: top lawyer at the Department of Homeland Security is publicly

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Speaker 2: calling out for federal judges in a list This is Bloomberg.

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Speaker 2: Last week, Justice is Elena Kaigan and Amy Cony Barrett

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Speaker 2: testified before Congress about the increasing threats to the judiciary.

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Speaker 2: Justice Kagan explained how politicians calling out judges by name

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Speaker 2: and trying to intimidate them crosses a line and it's dangerous.

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Speaker 4: These statements are really unhelpful. They're dangerous in terms of

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Speaker 4: individual justices security, and they're not appropriate the way to

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Speaker 4: treat a coordinate branch of government. I think the Chief

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Speaker 4: Justice had a year end statement last year where he

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Speaker 4: talked about this issue, and he talked about a criticism

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Speaker 4: is fair game. I mean, go for it. You know,

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Speaker 4: life in the big city is that you're subject to

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Speaker 4: all kinds of criticism, But intimidation is a different thing entirely.

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Speaker 4: And when political figures of any stripe are trying to

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Speaker 4: intimidate judges and justices to do things that they like

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Speaker 4: rather than the things that they don't. That's where we

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Speaker 4: really have crossed the line.

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Speaker 2: Judges are facing increasing threats, with the US Marshals Service

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Speaker 2: tracking five hundred and sixty four threats against federal judges

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Speaker 2: last year. But instead of toning down the rhetoric against judges, today,

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Speaker 2: the top lawyer in the Department of Homeland Security, James Percival,

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Speaker 2: called out four federal judges by name in posts on

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Speaker 2: social media, which he described as a new series entitled

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Speaker 2: quote Worst of the Worst District Judge. Addition, apparently the

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Speaker 2: judges made the list because they ruled against the Trump

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Speaker 2: administrations immigration agenda. For example, two of the judges ruled

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Speaker 2: to temporarily preserve deportation protections for certain immigrants from Burma

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Speaker 2: and Somalia while litigation continued. Another judge was in charge

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Speaker 2: of the Justice departments bungled deportation proceedings for Kilmar Orbrego Garcia.

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Speaker 2: I've been talking to retired federal judge Jeremy Fogel. Judge

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Speaker 2: Fogal your article three coalition has spoken out about the

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Speaker 2: increasing threats to federal judges safety and last week, Justices

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Speaker 2: Amy Cony Barrett and Elena Kagan were testifying before Congress

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Speaker 2: about the increasing threats to justices and judges as well.

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Speaker 2: Yet today we have the General Counsel of the Department

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Speaker 2: of Homeland Security putting out a list of four judges

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Speaker 2: he calls the worst of the worst. So doing exactly

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Speaker 2: what the justices said was dangerous.

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Speaker 3: That's exactly the kind of thing that we're trying to

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Speaker 3: be vigilant about. I don't think anybody's really said it

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Speaker 3: better than the Chief Justice. I mean, he's now spoken

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Speaker 3: about it three or four times, and it's very unusual

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Speaker 3: for him to make public statements like that. He's felt

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Speaker 3: it necessary to speak out about threat and among the

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Speaker 3: statements that he's made, he's talked about it's inappropriate to

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Speaker 3: engage in these kinds of attacks, to call like that,

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Speaker 3: to threaten judges with impeachment or removal, that it's somehow

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Speaker 3: appropriate to go after them because they've ruled against the

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Speaker 3: administration in the ways that they have. The sitting judges

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Speaker 3: are very limited in what they could say because of

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Speaker 3: ethical and I think retired judges are in a unique

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Speaker 3: position say, look, we have sat in that chair. We

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Speaker 3: understand what the job is, we understand what our responsibilities

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Speaker 3: are in terms of following the law and doing the

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Speaker 3: right thing is the best of our ability, and we

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Speaker 3: have a system which allows for thorough review. People make

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Speaker 3: decisions that you don't like. I mean, that's why we

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Speaker 3: have appellate courts, that's why we have very robust a

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Speaker 3: pellet review. And to make these kinds of personal characterizations

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Speaker 3: and putting people on hit lists or enemies lists or

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Speaker 3: impeachment lists, again, that's just not the way our system

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Speaker 3: ever has been intended to work. So I don't think

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Speaker 3: that's constructive. And I think that's really been one of

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Speaker 3: our goals try to educate the public to the extent

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Speaker 3: that we can that you know you don't like a

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Speaker 3: judge's rulings, you can speak out about that, you can

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Speaker 3: write op eds, you can make public speeches, you can

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Speaker 3: talk to your neighbors, you can do all the things

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Speaker 3: that the First Amendment entitles you to do. But you

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Speaker 3: can't threaten people. And I think Justice Barrett and Justice

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Speaker 3: Kegan we're very eloquent about that, and they both faced this.

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Speaker 3: Sispic's family has been threatened and Justice Kagan has they's threats,

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Speaker 3: and I think the fact of that on the morale

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Speaker 3: of judges, the ability of judges to do their jobs

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Speaker 3: without undue pressure under stress. And it's a hard enough

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Speaker 3: job as it is, you know, just trying to get

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Speaker 3: the law right and trying to get the cases right

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Speaker 3: and manage the workload that you have. And then when

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Speaker 3: you when you get you know, people coming after you

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Speaker 3: or coming after your family, that really really ratcheted up.

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Speaker 3: And this is an area I do a lot of

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Speaker 3: work in and helping judges deal with stress and be resilient.

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Speaker 3: And it's just graduated up so much in the last

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Speaker 3: few years. You know that a job that was already

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Speaker 3: difficult has become much more difficult because of security issues

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Speaker 3: and personal threats. And I think that's why the chief

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Speaker 3: is spoken out, and I give them full credit for that.

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Speaker 3: He hasn't been quiet about it, and I think that's

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Speaker 3: very important.

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Speaker 2: Well, thanks so much for joining me today. I appreciate

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Speaker 2: your time. That's Judge Jeremy Fogel, formerly of the Northern

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Speaker 2: District of California. Back in October of twenty twenty one,

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Speaker 2: John Gruden resigned in the middle of a four hundred

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Speaker 2: million dollar ten year contract as coach of the Las

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Speaker 2: Vegas Raiders after the leak of emails where Gruden used

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Speaker 2: racist and homophobic language. He apologized, in particular for the

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Speaker 2: racist term he used to describe NFL Union chief D

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Speaker 2: Maurice Smith.

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Speaker 5: I can say as I'm not a racist, I don't.

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Speaker 5: I can't tell you how sick I am. I apologize

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Speaker 5: again to D. Smith, but I feel good about who

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Speaker 5: I am and what I've done my entire life, and

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Speaker 5: I apologize for the insensitive remarks. I had no you know,

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Speaker 5: I had no racial intentions with those remarks at all.

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Speaker 2: The next month, Gruden filed a one hundred and fifty

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Speaker 2: million dollar lawsuit against the NFL and Commissioner Roger Goodell,

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Speaker 2: claiming that in a malicious and orchestrated campaign, the league

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Speaker 2: leaked the damaging emails to ruin his reputation and force

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Speaker 2: his resignation. Goodell and the League denied the allegations and

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Speaker 2: have been vigorously fighting the case since, including failed efforts

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Speaker 2: to force this suit into private arbitration and to stall discovery,

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Speaker 2: both of which went all the way up to the

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Speaker 2: Nevada Supreme Court before they were denied. Now the NFL

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Speaker 2: is trying to get the lawsuit dismissed under Nevada's anti

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Speaker 2: slap statute joining me his first Amendment expert Jeff Lewis.

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Speaker 2: Jeff start by telling us a little about Gruden's lawsuit.

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Speaker 1: Well, coach Cruden used to be the coach of the

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Speaker 1: Las Vegas Raiders, and he was forced to resign after

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Speaker 1: some unflattering emails were released that he had sent when

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Speaker 1: he was actually a broadcaster for ESPN. And the gist

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Speaker 1: of his lawsuit is that he says these emails were

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Speaker 1: obtained by the NFL, released for the purpose of torpedoing

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Speaker 1: John Gruden's career, and so he sued the NFL for

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Speaker 1: lost income and lost opportunities.

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Speaker 2: So the NFL has spent years trying to have this

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Speaker 2: lawsuit dismissed or forced into private arbitration. Last summer, the

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Speaker 2: Nevada Supreme Court upheld a lower court ruling that allowed

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Speaker 2: the case to move forward in court rather than being

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Speaker 2: handled through private arbitration. How important is that that it's

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Speaker 2: not going to be an arbitration, You.

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Speaker 1: Know, that's a great point. You know, in football, when

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Speaker 1: you want to keep offense off the field, you run

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Speaker 1: out the clock. And that's what the NFL has been

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Speaker 1: doing in terms of trying to force this case into

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Speaker 1: an arbitration where the commissioner of the NFL runs the arbitration.

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Speaker 1: So the Nevada Supreme Court said, no, that's not going

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Speaker 1: to happen. So now this case is going to be

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Speaker 1: heard in a court with discovery open to the public,

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Speaker 1: not confidential. Trial set for early twenty twenty seven. And

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Speaker 1: the fact that discovery can be conducted and that this

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Speaker 1: trial is going to be in open and not any

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Speaker 1: secret arbitration suggests to me that maybe this case, when

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Speaker 1: it gets close to trial, will settle because both of

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Speaker 1: these parties have big incentives not to have this aired

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Speaker 1: out in public.

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Speaker 2: So the NFL is trying to get the lawsuit dismissed

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Speaker 2: under Nevada's anti slap statute. Tell us about the anti

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Speaker 2: slap statutes.

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Speaker 1: Sure, before I talk to you about antislap, let me

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Speaker 1: tell you what a slap is. A slap is a

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Speaker 1: strategic lawsuit against public participation where a big company or

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Speaker 1: large corporation is trying to stifle the First Amendment rights

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Speaker 1: of a little guy that David versus Goliath battle. And

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Speaker 1: what an antislap law says is rather than waiting five

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Speaker 1: years and spending half a million dollars on attorney's fees.

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Speaker 1: A defendant in a slapsuit, a case involving First Amendment

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Speaker 1: rights can very quickly cut the line, have their case

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Speaker 1: looked at in the first six months, and if it's

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Speaker 1: a frivolous case, have it thrown out, and have all

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Speaker 1: their attorney's fees paid for. That's what an anti slap

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Speaker 1: usually does. What makes this case super unusual is the NFL,

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Speaker 1: first of all, is not the David in the David

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Speaker 1: and Goliath scenario. The NFL is using the antislap law

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Speaker 1: halfway through the case, years after it was filed, to

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Speaker 1: try to get the case kicked out, and preliminarily, the

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Speaker 1: trial court has said, no, this is not a good

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Speaker 1: use of the antislap law. It's too late and your

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Speaker 1: arguments aren't good, and so we're going to let discovery

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Speaker 1: and the trial date continue. And the NFL's signaled that's

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Speaker 1: going to appeal that ruling and wants to stay all

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Speaker 1: discovery pending that appeal, and so far the trial court

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Speaker 1: has said no, we're going to continue with discovery.

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Speaker 2: So Nevada's antislap law protects quote, a person who engages

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Speaker 2: in a good faith communication in furtherance of the right

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Speaker 2: to petition or the right to free speech in direct

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Speaker 2: connection with an issue of public concern. How is the

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Speaker 2: NFL arguing that this case fits within that definition.

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Speaker 1: Through some creative lawyering. Look, the First Amendment does protect

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Speaker 1: the right folks to communicate with the press about issues

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Speaker 1: of public importance. You and I are talking about an

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Speaker 1: issue of public importance right now, and so the NFL's

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Speaker 1: creative lawyering is, Look, when they supplied emails to a

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Speaker 1: reporter or to a newspaper or the Wall Street Journal,

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Speaker 1: they were communicating with the press and exercising First Amendment

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Speaker 1: rights for an important news story. The contrary argument that

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Speaker 1: Gruden has advocated is, Look, this wasn't First Amendment activity.

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Speaker 1: You leaked it. It was quiet, wasn't in furtherance of

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Speaker 1: some First Amendment right. You were just trying to do

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Speaker 1: a hit piece on John Gordon.

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Speaker 2: Do they know who leaked the emails?

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Speaker 1: No. That's why discovery so important this case, and that's

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Speaker 1: why NFL is trying to fight discovery and use appeals

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Speaker 1: and delay tactics. And that's why John Gruden is pushing

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Speaker 1: for discovery. It's the pressure point by which this case

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Speaker 1: will eventually settle.

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Speaker 2: Because if they don't know who leaked it, how can

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Speaker 2: they claim that the person engaged in good faith communication.

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Speaker 1: That's exactly right, and the good faith here, it's the

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Speaker 1: NFL's burden to show their good faith, and they can't

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Speaker 1: just generically say, well, someone leaked it and they must

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Speaker 1: have had good faith. They have to have an actual, living,

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Speaker 1: breathing person to sign a declaration or testify in court

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Speaker 1: saying here's why I leaked it, and I don't know June,

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Speaker 1: but I'm going to guess that the person who leaked

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Speaker 1: this from the NFL either didn't say anything to the

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Speaker 1: press when they were leaking it, or didn't say anything

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Speaker 1: flattering to John Gruden when they were leaking it to

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Speaker 1: the press. Either scenario, it's going to be a hard,

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Speaker 1: hard burden for the NFL to show its good faith.

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Speaker 2: So they want to get rid of the suit before

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Speaker 2: discovery begins. When discovery begins, they'll be able to find

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Speaker 2: out who leaked the emails right absolutely.

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Speaker 5: Now.

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Speaker 1: You know, they can't go after the reporters because of

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Speaker 1: shield laws, so John Gruden can't subpoena reporters, but they

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Speaker 1: can serve discovery on the NFL asking for emails and

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Speaker 1: text messages of its key personnel to find out who

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Speaker 1: add access to these emails during its investigation of the

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Speaker 1: Washington football team, and after you know, you narrow it

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Speaker 1: down to that group who had contact with the Wall

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Speaker 1: Street Journal, we'll find out.

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Speaker 2: The NFL was also at the Nevada Supreme Court about

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Speaker 2: discovery in the lawsuit. Is it unusual to be going

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Speaker 2: to the supreme court of a state so often when

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Speaker 2: we haven't even gotten to the merits yet.

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Speaker 1: Yeah, there's been a lot of interlocatory appeals in this case.

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Speaker 1: It's very unusual. But when you have the resources of

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Speaker 1: the NFL and you want to run out the clock,

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Speaker 1: it's not surprising they They've advanced every appeal they can.

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Speaker 2: Gruden is going to seek testimony from league executives, prominent

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Speaker 2: team owners, and Goodell himself, Commissioner Goodell himself. Will they

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Speaker 2: likely get access to all those people in discovery or

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Speaker 2: will it be a fight?

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Speaker 1: Well, they likely get access to all the emails and

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Speaker 1: text messages from those key people. Whether they get live

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Speaker 1: testimony is another question. And I don't think they can

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Speaker 1: start at the commissioner level. We'll have to start at

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Speaker 1: lower level. Employees of the NFL and see what John

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Speaker 1: Gruden can get from those witnesses. And if they don't

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Speaker 1: get anywhere, then yeah, they can ask the court to

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Speaker 1: order the commissioner himself to show up for a deposition.

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Speaker 2: So is this anti slap motion a hail mary passed

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Speaker 2: by the NFL.

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Speaker 1: It is a hail lary in the sense that it

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Speaker 1: is so late. Most courts like these antislap motions heard

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Speaker 1: within the first sixty to ninety one hundred and twenty days,

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Speaker 1: not two years in, and so it's procedurally improper. Substantively,

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Speaker 1: I have to say it has merit in the sense

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Speaker 1: that the NFL has a colorable argument that this is

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Speaker 1: a First Amendment case, that speaking to the press is

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Speaker 1: an exercise of First Amendment activity. But I do think

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Speaker 1: John Gruden has enough of a case that he can

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Speaker 1: squeak by the anti slap analysis. Even if the anti

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Speaker 1: slap motion were timely, this case is going to escape

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Speaker 1: an anti slap motion to dismiss.

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Speaker 2: Why is the NFL trying so hard to delay delay.

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Speaker 1: Delay, Because they don't want their commissioner Coorse to sit

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Speaker 1: for a deposition, and because on Gruden, in addition to

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Speaker 1: unearthing his emails, will seek to unearth other embarrassing emails

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Speaker 1: and communications by either other coaches or other high level

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Speaker 1: executives of the NFL, and all of that dirty laundry

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Speaker 1: will come out in a public proceeding without the benefit

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Speaker 1: of the confidentiality of an arbitration. And so that's a

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Speaker 1: pressure point to use against the NFL to try to

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Speaker 1: get them to write a big check.

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Speaker 2: Yeah, I was going to say, they're delaying the inevitable

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Speaker 2: unless there's a settlement, right.

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Speaker 1: You know, most cases don't go to trial. Most cases settle.

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Speaker 1: The question is how much pressure can John Gruden assert

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Speaker 1: against the NFL to force a higher and higher settlement

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Speaker 1: check because this is not a case that either party

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Speaker 1: wants to try in public.

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Speaker 2: What does this case tell you about the need for

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Speaker 2: anti slap laws?

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Speaker 1: This case kind of highlights why every state needs an

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Speaker 1: anti slap law. You know, not all states have an

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Speaker 1: antislap law, and the anti slap law is what gives

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Speaker 1: the first Amendment. It's deep. If you're in a state

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Speaker 1: that doesn't have an anti slap law and you get

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Speaker 1: sued for something, you have to wait five years to

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Speaker 1: gata case, spend maybe half a million dollars in attorney's fees,

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Speaker 1: and if you're in a state with an antislap law,

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Speaker 1: you can cut the line, have a judge look at

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Speaker 1: your case early, have a judge determine whether or not

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Speaker 1: this is a frivolous case, and dismiss it or not,

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Speaker 1: and save to you that five years of litigation. And

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Speaker 1: Nevada and California have antislap laws, but only about half

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Speaker 1: the states do. And there has been some talk for

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Speaker 1: some time about passing a federal anti slap law so

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Speaker 1: that it's more uniform across the states, so that people

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00:24:28,040 --> 00:24:31,919
Speaker 1: who legitimately need the protection of the First Amendment can

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00:24:32,000 --> 00:24:34,240
Speaker 1: assert it in the first few months of a case,

440
00:24:34,359 --> 00:24:36,000
Speaker 1: not like the NFL did here two.

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00:24:35,960 --> 00:24:39,400
Speaker 2: Years in you I'm curious the NFL has, we say,

442
00:24:39,520 --> 00:24:43,959
Speaker 2: limitless money to spend on lawyers. How is Gruden matching

443
00:24:44,040 --> 00:24:44,639
Speaker 2: up with it?

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00:24:45,280 --> 00:24:48,439
Speaker 1: Most planuffs in his position will either pay their lawyers

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00:24:48,440 --> 00:24:51,880
Speaker 1: on a contingency basis or a hybrid basis. And most

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00:24:51,920 --> 00:24:54,120
Speaker 1: plaintiffs lawyers who take on a case against a high

447
00:24:54,160 --> 00:24:56,800
Speaker 1: profile defendmant like this, know that they're going to have

448
00:24:57,080 --> 00:25:01,159
Speaker 1: years of litigation and lots of procedural obstacles placed in

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00:25:01,200 --> 00:25:04,440
Speaker 1: their way, lots of appeals. So I imagine whichever lawyer's

450
00:25:04,480 --> 00:25:07,000
Speaker 1: Gruden hired, those lawyers knew they were going to be

451
00:25:07,080 --> 00:25:09,480
Speaker 1: in for a very long fight. There's lots of technical

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00:25:09,560 --> 00:25:12,000
Speaker 1: defenses that could be raised here, and even if John

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00:25:12,200 --> 00:25:14,440
Speaker 1: Gruden were to go to trial and win, there will

454
00:25:14,480 --> 00:25:17,240
Speaker 1: be appeals after the fact. One of the interesting things

455
00:25:17,240 --> 00:25:19,280
Speaker 1: about this case is, you know, in most cases like

456
00:25:19,359 --> 00:25:22,879
Speaker 1: this involving emails, it's a claim of either defamation or

457
00:25:23,000 --> 00:25:26,760
Speaker 1: false light, meaning the emails suggests something false or that

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00:25:27,000 --> 00:25:30,800
Speaker 1: puts the person who wrote the emails in a negative light. Here,

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00:25:31,400 --> 00:25:35,080
Speaker 1: these emails are in John Gruden's own words. He wrote them,

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00:25:35,600 --> 00:25:39,000
Speaker 1: and he's in the unique position of having to say, yeah,

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00:25:39,440 --> 00:25:42,080
Speaker 1: I wrote some awful things. I wrote those things, I

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00:25:42,200 --> 00:25:44,679
Speaker 1: said those things. But the NFL should not have released

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00:25:44,680 --> 00:25:47,600
Speaker 1: them in a targeted fashion. And the NFL has the

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00:25:47,640 --> 00:25:51,640
Speaker 1: interesting culture war argument. The NFL has the argument suggesting

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00:25:51,680 --> 00:25:56,000
Speaker 1: they're trying to clean up their culture, combat homophobia and misogyny,

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00:25:56,359 --> 00:25:59,240
Speaker 1: and releasing these emails was just part of its campaign

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00:25:59,680 --> 00:26:02,600
Speaker 1: to clean up its image. Whether or not Discovery bears

468
00:26:02,680 --> 00:26:05,600
Speaker 1: either of those arguments out is something to be seen and.

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Speaker 2: We'll see if this really does go to trial next May.

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Speaker 2: Thanks so much, Jeff. That's First Amendment expert Jeff Lewis,

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Speaker 2: And that's it for this edition of The Bloomberg Law Show.

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Speaker 2: Remember you can always get the latest legal news on

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00:26:18,520 --> 00:26:22,760
Speaker 2: our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify,

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00:26:23,000 --> 00:26:28,000
Speaker 2: and at www dot bloomberg dot com slash podcast Slash Law,

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00:26:28,440 --> 00:26:31,000
Speaker 2: and remember to tune into The Bloomberg Law Show every

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00:26:31,080 --> 00:26:34,960
Speaker 2: weeknight at ten pm Wall Street Time. I'm June Grosso

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00:26:35,119 --> 00:26:36,680
Speaker 2: and you're listening to Bloomberg