WEBVTT - Bloomberg Law Weekend: A Year End Special 0:00:02.000 --> 0:00:03.880 This is Bloomberg Law. 0:00:03.920 --> 0:00:06.720 What does a prosecutor have to prove in order to 0:00:06.760 --> 0:00:09.959 get a rico conviction? Tell us why this solicitor General 0:00:10.000 --> 0:00:12.319 is sometimes referred to as the tenth Justice. 0:00:12.320 --> 0:00:15.560 Interviews with prominent attorneys in Bloomberg Legal Experts. 0:00:15.560 --> 0:00:18.360 That's Jennifer k for Bloomberg Law. Joining me is former 0:00:18.440 --> 0:00:20.080 federal prosecutor Robert. 0:00:19.760 --> 0:00:23.160 Miss and analysis of important legal issues, cases and headlines 0:00:23.320 --> 0:00:23.560 is the. 0:00:23.520 --> 0:00:27.480 Toughest hurtle for prosecutors proving Trump's intent. Alito took on 0:00:27.600 --> 0:00:31.560 Congress saying Congress has no power to regulate the Supreme Court. 0:00:31.560 --> 0:00:35.040 Bloomberg Law with June Grosso from Bloomberg Radio. 0:00:37.720 --> 0:00:40.240 Welcome to a special edition of the Bloomberg Law Show. 0:00:40.320 --> 0:00:43.320 I'm June Grosso. Ahead in this hour, we'll look at 0:00:43.320 --> 0:00:46.360 some of the high profile cases the Supreme Court heard 0:00:46.440 --> 0:00:49.280 in twenty twenty three and one they might hear in 0:00:49.360 --> 0:00:54.280 twenty twenty four. We'll discuss double Jeopardy, trademarks and baseball's 0:00:54.280 --> 0:00:58.520 antitrust exemption. All that's ahead, But first make. 0:00:58.880 --> 0:01:02.920 Sure that every ring, single justice up in that court 0:01:03.560 --> 0:01:07.600 knows we are here, we are watching, and we demand 0:01:07.880 --> 0:01:11.200 that they put our lives over the interests of the 0:01:11.240 --> 0:01:11.880 gun lobby. 0:01:12.040 --> 0:01:15.240 Hundreds of protesters took to the Supreme Court this fall 0:01:15.319 --> 0:01:19.080 to support the federal ban on domestic abusers having guns, 0:01:19.360 --> 0:01:23.640 and inside, the justices seem to agree, suggesting during oral 0:01:23.760 --> 0:01:26.800 arguments that they'll preserve the ban and it didn't even 0:01:26.880 --> 0:01:30.720 seem like a hard issue. Both liberals and conservatives sounded 0:01:30.800 --> 0:01:33.720 persuaded that the ban is in line with the long 0:01:33.760 --> 0:01:38.960 standing practice of disarming dangerous people, and the defendant undoubtedly 0:01:39.000 --> 0:01:43.080 fit in that category. Here's Chief Justice John Roberts questioning 0:01:43.120 --> 0:01:43.800 his attorney. 0:01:44.120 --> 0:01:46.640 You don't have any doubt that your client's a dangerous person, 0:01:46.680 --> 0:01:47.880 do you. 0:01:48.360 --> 0:01:50.120 I would want to know what dangerous person means. 0:01:50.640 --> 0:01:56.040 That's iding someone who's shooting at people. That's a good start. 0:01:56.400 --> 0:02:00.000 My guest, is Second Amendment expert Adam Winkler, a professor 0:02:00.200 --> 0:02:03.800 at UCLA Law School. Let's start with the big question. 0:02:04.280 --> 0:02:08.519 Did it seem like justices across the board were inclined 0:02:08.560 --> 0:02:10.480 to uphold this federal gun ban. 0:02:11.120 --> 0:02:14.520 It did. It felt very one sided in the Supreme Court, 0:02:14.560 --> 0:02:17.440 and it felt like almost all the justices, if not 0:02:17.560 --> 0:02:21.359 all the justices, were inclined to uphold the federal ban 0:02:21.560 --> 0:02:22.160 in this case. 0:02:22.639 --> 0:02:25.800 This is the first test of last year's ruling in 0:02:25.880 --> 0:02:29.480 Bruin that established a constitutional right to carry a handgun 0:02:29.520 --> 0:02:32.160 in public. So in order to understand it, I think 0:02:32.200 --> 0:02:35.360 we have to take a look at the historical analysis 0:02:35.720 --> 0:02:39.480 test established in Bruin that's caused so much confusion in 0:02:39.520 --> 0:02:42.600 the lower courts and led to them striking down gun 0:02:42.639 --> 0:02:45.360 control laws that have been on the books for decades. 0:02:45.639 --> 0:02:47.480 So tell us about that test, Adam. 0:02:47.800 --> 0:02:51.480 In the Bruin case, Justice Thomas's majority opinion said that 0:02:51.520 --> 0:02:55.519 for gun laws to be constitutional and permissible today, they 0:02:55.600 --> 0:02:59.800 must have historical analogs in the seventeen and eighteen hundreds 0:02:59.800 --> 0:03:03.399 when Second Amendment was adopted and the Fourteenth Amendment was adopted, 0:03:03.760 --> 0:03:05.920 incorporating the Second Amendment to apply. 0:03:05.760 --> 0:03:06.639 To the states. 0:03:06.880 --> 0:03:09.800 As a result, courts have really struggled over the last 0:03:09.919 --> 0:03:13.200 year or so trying to find gun laws back in 0:03:13.280 --> 0:03:18.000 those days that are sufficiently analogous to many common sense, 0:03:18.200 --> 0:03:22.000 mainstream gun laws that we have today. Truth be told, 0:03:22.120 --> 0:03:25.639 many of our gun laws are kind of twentieth century inventions, 0:03:25.720 --> 0:03:28.880 bans on felons possessing firearms, bans on the mentally ill 0:03:28.919 --> 0:03:32.000 possessing firearms, and the issue into this case ban on 0:03:32.120 --> 0:03:35.960 domestic abusers possessing firearms. These are laws that don't have 0:03:36.080 --> 0:03:40.320 any obvious analog in the seventeen and eighteen hundreds, and 0:03:40.760 --> 0:03:43.400 so this law was struck down by the Fifth Circuit, 0:03:43.520 --> 0:03:45.640 just like courts around the country have been striking down 0:03:45.680 --> 0:03:49.400 gun laws for lack of a clear historical precedent. 0:03:49.680 --> 0:03:52.920 So then how did the justices get around that lack 0:03:52.960 --> 0:03:56.680 of a clear historical precedent and all end up seemingly 0:03:56.800 --> 0:03:58.080 in favor of this bank. 0:03:58.200 --> 0:04:00.320 First of all, I think it's important to know what 0:04:00.480 --> 0:04:05.040 Elizabeth Proligar, the Flicitor General, began her oral argument with 0:04:05.240 --> 0:04:08.920 by noting the statistics that show that domestic abusers with 0:04:09.080 --> 0:04:13.280 firearms are an incredibly deadly mix, and that forty eight 0:04:13.320 --> 0:04:16.560 states and the federal government have prohibited domestic abusers from 0:04:16.560 --> 0:04:19.839 possessing firearms, showing that what she intended to do was 0:04:19.880 --> 0:04:22.479 not just rely on the history and tradition, but on 0:04:22.560 --> 0:04:25.599 the common sense idea that some people are too dangerous 0:04:25.640 --> 0:04:28.680 to have firearms. But the court seemed to be inclined 0:04:29.000 --> 0:04:33.440 to do is allow the government to frame their gun 0:04:33.520 --> 0:04:36.479 laws at a higher level of generality. You don't have 0:04:36.560 --> 0:04:39.560 to show that there's a history and tradition of domestic 0:04:39.800 --> 0:04:43.680 abusers being prohibited from possessing firearms, and of course there 0:04:43.720 --> 0:04:46.200 isn't a long history and tradition of that, but maybe 0:04:46.240 --> 0:04:48.919 you could show that there's a history and tradition of 0:04:49.040 --> 0:04:54.080 prohibiting dangerous people from possessing firearms, and domestic abusers are 0:04:54.200 --> 0:04:57.240 just a modern day understanding of people who are just 0:04:57.279 --> 0:04:58.560 too dangerous to have come. 0:04:58.760 --> 0:05:01.839 Did the Liberal justice does seem like they wanted to 0:05:02.000 --> 0:05:06.279 use this case to revisit that history based test. Here's 0:05:06.440 --> 0:05:08.000 Justice Katanji Brown Jackson. 0:05:08.480 --> 0:05:10.760 What's the point of going to the founding era? I mean, 0:05:10.800 --> 0:05:12.880 I thought it was doing some work, but if we're 0:05:12.920 --> 0:05:19.479 still applying modern sensibilities, I don't really understand the historical framing. 0:05:19.960 --> 0:05:23.960 It did seem like she was pressing that it's very 0:05:24.000 --> 0:05:28.000 hard to defend this domestic violence abuser ban when people 0:05:28.040 --> 0:05:30.479 are subject to a restraining order in light of the 0:05:30.560 --> 0:05:33.800 history and tradition of which that the Bruin Court offered. 0:05:34.200 --> 0:05:37.159 Although Bruin said that you should look for analogous laws, 0:05:37.520 --> 0:05:39.320 I think that at the end of the day, the 0:05:39.360 --> 0:05:43.120 government is hard pressed to draw a very close analogy. Instead, 0:05:43.120 --> 0:05:47.320 the analogies are very General and didn't exactly apply on point. 0:05:47.920 --> 0:05:51.360 Did a majority of the conservative justices seem to want 0:05:51.400 --> 0:05:54.960 to limit any decision to the facts here? Justice Neil 0:05:55.000 --> 0:05:56.920 Gorsitch said at one point, do we need to get 0:05:56.960 --> 0:05:57.760 into any of that? 0:05:58.320 --> 0:06:00.880 It did seem like several was a this is, including 0:06:01.040 --> 0:06:05.479 Justices Gorsich, Thomas, and Alito. We're looking for ways to 0:06:05.680 --> 0:06:09.960 narrow the consequence of ruling against Rahemi in this case 0:06:10.040 --> 0:06:13.119 and in favor of upholding the law, talking about whether 0:06:13.200 --> 0:06:17.160 there might be different as applied challenges that someone could bring, 0:06:17.360 --> 0:06:20.320 or whether there might be some common law defenses that 0:06:20.360 --> 0:06:23.400 one could bring to a charge that one was possessing 0:06:23.440 --> 0:06:27.400 a firearm illegally in violation of the domestic violence restraining order, 0:06:27.640 --> 0:06:30.800 and several of the justices released. Justice Alito expressed some 0:06:31.040 --> 0:06:34.599 discomfort with the idea that these domestic violence restraining orders 0:06:34.839 --> 0:06:37.800 could be very long lasting and yet don't have very 0:06:38.320 --> 0:06:44.440 serious procedural requirements that correspond with broad notions of due process. 0:06:44.520 --> 0:06:47.839 Perhaps, the Solicitor General said the Court should use the 0:06:47.880 --> 0:06:50.800 present case to give more guidance to the lower courts 0:06:50.839 --> 0:06:54.240 and to correct lower courts quote profound misreading of the 0:06:54.279 --> 0:06:58.200 bruined decision. Do you think we'll get any major statements 0:06:58.560 --> 0:06:59.480 out of this ruling. 0:07:00.160 --> 0:07:02.359 I think that's going to be one of the big questions. 0:07:02.480 --> 0:07:05.800 Is this a really narrow ruling that just cobbles together 0:07:05.880 --> 0:07:09.680 a majority, or is it an opinion that will provide 0:07:09.800 --> 0:07:13.680 more guidance to the lower courts. Justice Kagan specifically asked 0:07:13.760 --> 0:07:16.960 about that and about the necessity, and the Solicitener General 0:07:17.000 --> 0:07:19.920 had a very clear and precise answer that there were 0:07:20.160 --> 0:07:23.400 three errors being committed by the lower courts. They were 0:07:23.440 --> 0:07:26.880 only looking to regulation and not looking to other historical sources. 0:07:26.960 --> 0:07:29.720 They were looking at regulation, but we're really looking for 0:07:29.960 --> 0:07:34.280 twins rather than for historical analogs. And also that the 0:07:34.400 --> 0:07:38.200 absence of regulation should not always be read against the government, 0:07:38.280 --> 0:07:41.000 especially when a problem like domestic violence was not really 0:07:41.040 --> 0:07:42.560 thought of as a problem back then. 0:07:42.920 --> 0:07:47.080 So I admit that I find this historical analysis test 0:07:47.520 --> 0:07:51.880 with Second Amendment cases just bordering on ridiculous. Were there 0:07:51.920 --> 0:07:55.920 any clues as to whether the Conservatives remained behind the 0:07:56.080 --> 0:07:58.680 historical analysis that Thomas put in place. 0:07:59.240 --> 0:08:02.160 Well, I think that the Solicitor General made a very 0:08:02.200 --> 0:08:06.119 strategic choice not to challenge the history and tradition test 0:08:06.200 --> 0:08:12.800 of Bruin but instead seek to, if anything, recapture its fluidity, 0:08:12.880 --> 0:08:16.320 its ability to be useful to uphold laws, not just 0:08:16.360 --> 0:08:19.720 to strike down laws. And so she was not asking 0:08:19.800 --> 0:08:22.560 the court to abandon the history and tradition test. Rather, 0:08:22.600 --> 0:08:25.280 she was saying that the lower courts have been misapplying 0:08:25.400 --> 0:08:27.840 that test, and that to capture the true essence of 0:08:27.880 --> 0:08:30.800 that test means that you should approach the issue the 0:08:30.800 --> 0:08:33.480 way she did, at a slightly higher level of generality, 0:08:33.520 --> 0:08:38.240 focusing on dangerousness rather than looking for historical precedence of 0:08:38.440 --> 0:08:41.559 domestic abusers being prohibited access to firearms. 0:08:41.880 --> 0:08:44.360 If you had to guess, would you guess that it's 0:08:44.400 --> 0:08:47.760 going to be a limited opinion or a broader opinion. 0:08:48.160 --> 0:08:49.720 If you were to guess, I would say this is 0:08:49.880 --> 0:08:52.680 likely to be a nine to nothing, maybe eight to 0:08:52.760 --> 0:08:56.000 one or seven to two opinion. And I think because 0:08:56.040 --> 0:08:58.880 of that, the larger the majority, the less likely it 0:08:58.960 --> 0:09:01.480 is to be very far reaching. That it may be 0:09:01.520 --> 0:09:04.320 one of these cases that gets assigned to Justice Gorsich 0:09:04.440 --> 0:09:07.000 to just do as little damage as possible to the 0:09:07.040 --> 0:09:09.640 bruined test. But I do think that it's no matter 0:09:09.640 --> 0:09:13.040 how big the majority is to uphold the federal law here. 0:09:13.200 --> 0:09:15.920 If indeed, the Court does uphold the federal law here, 0:09:16.200 --> 0:09:19.880 it will be very good news for gun safety reform advocates. 0:09:19.960 --> 0:09:22.960 They've been struggling to defend gun laws in courts, bans 0:09:23.000 --> 0:09:26.480 on guns without serial numbers, bans on assault weapons. So 0:09:26.760 --> 0:09:28.800 if the court does move to this higher level of 0:09:28.840 --> 0:09:32.000 generality it says that government can prohibit people who are 0:09:32.080 --> 0:09:35.320 dangerous from having firearms, it would provide a basis for 0:09:35.400 --> 0:09:37.920 defending a lot of our core gun laws that we 0:09:38.040 --> 0:09:41.200 really rely on in modern twenty first century America. 0:09:41.480 --> 0:09:44.120 And Adam, we also saw that the Supreme Court agreed 0:09:44.160 --> 0:09:46.800 to decide the fate of the federal criminal ban on 0:09:46.920 --> 0:09:50.920 bump stocks, the attachments that let a semi automatic rifle 0:09:51.160 --> 0:09:53.439 fire much like a machine gun. What do you make 0:09:53.480 --> 0:09:54.920 of that? Do you make anything of it? 0:09:55.240 --> 0:09:55.400 No? 0:09:55.480 --> 0:09:57.320 I don't make much of it. I think that is 0:09:57.400 --> 0:10:00.040 really an administrative law case, and it's about wh the 0:10:00.440 --> 0:10:05.400 administrative agency went too far in interpreting its powers under 0:10:05.520 --> 0:10:09.720 the Gun Control Act and other federal statutes that regulate firearms. 0:10:10.040 --> 0:10:12.320 And so I think that although they both deal with 0:10:12.400 --> 0:10:15.959 firearms regulation, both these cases they're very different. One's the 0:10:16.040 --> 0:10:18.520 Second Amendment case that's going to be decided on Second 0:10:18.520 --> 0:10:21.439 Amendment grounds and have huge impact on how other Second 0:10:21.440 --> 0:10:24.040 Amendment cases are handled. Whatever the Court does on the 0:10:24.040 --> 0:10:27.800 bump stocks will be much more important for administrative law 0:10:27.920 --> 0:10:31.959 and the scope of administrative agency authority under the Constitution. 0:10:32.600 --> 0:10:35.800 A lot of administrative law cases this term. Thanks so much, 0:10:35.880 --> 0:10:40.080 Adam Best, Professor Adam Winkler of UCLA Law School. A note. 0:10:40.200 --> 0:10:44.000 Michael Bloomberg, the founder majority owner of Bloomberg LP, the 0:10:44.080 --> 0:10:47.000 parent of Bloomberg Radio, is a donor to groups that 0:10:47.080 --> 0:10:51.520 support gun control, including every Town for Gun Safety. Coming 0:10:51.600 --> 0:10:55.679 up the fight to trademark Trump too Small. I'm June 0:10:55.679 --> 0:10:57.240 Grosso and this is Bloomberg. 0:11:00.080 --> 0:11:05.880 You're listening to Bloomberg Law with June Grosso from Bloomberg Radio. 0:11:06.320 --> 0:11:09.160 You're listening to a special edition of Bloomberg Law as 0:11:09.160 --> 0:11:11.560 we look back at some of the high profile Supreme 0:11:11.600 --> 0:11:15.040 Court cases last year and look ahead to twenty twenty four. 0:11:15.440 --> 0:11:16.440 I'm June Grosso. 0:11:16.800 --> 0:11:18.800 He's always call me Marco. 0:11:18.880 --> 0:11:21.920 And he's hollow me like sixty two, which is why 0:11:21.920 --> 0:11:22.680 I don't understand. 0:11:22.720 --> 0:11:25.560 Well, he's hands five two. 0:11:25.640 --> 0:11:27.840 Have send for hitmans. 0:11:27.880 --> 0:11:28.800 I've never heard of this one. 0:11:29.080 --> 0:11:30.760 Look at those hands? Are they small? 0:11:30.800 --> 0:11:31.400 Hands. 0:11:31.480 --> 0:11:34.040 You may remember in the early days of the twenty 0:11:34.080 --> 0:11:38.960 sixteen presidential election when former President Donald Trump and Florida 0:11:39.040 --> 0:11:43.040 Senator Marco Rubio were engaged in some locker room talk 0:11:43.280 --> 0:11:46.080 over the size of Trump's hands. Now it's part of 0:11:46.080 --> 0:11:49.880 the case before the Supreme Court. Attorney Steve Elster says 0:11:49.880 --> 0:11:52.640 he has a free speech right to trademark the phrase 0:11:52.880 --> 0:11:56.440 trump too small to use on T shirts. The US 0:11:56.559 --> 0:12:00.280 Patent and Trademark Office disagreed, and it appears that the 0:12:00.320 --> 0:12:05.000 Supreme Court also disagrees. At oral arguments. On Wednesday, Justice 0:12:05.040 --> 0:12:09.400 Is Across the ideological divide suggested that denying Elster a 0:12:09.440 --> 0:12:12.680 trademark for the phrase does not violate his free speech 0:12:12.760 --> 0:12:16.840 rights for a host of reasons. Justice Katanji Brown Jackson 0:12:16.920 --> 0:12:19.120 discussed the point of trademark. 0:12:18.720 --> 0:12:22.840 Law, and trademark is not about expression. Trademark is not 0:12:22.960 --> 0:12:26.400 about the First Amendment in your and people's ability to speak. 0:12:26.720 --> 0:12:31.840 Trademark is about source identifying and preventing consumer confusion. 0:12:32.360 --> 0:12:35.960 Justice Sonya Sotomayor said that not getting a trademark does 0:12:36.000 --> 0:12:37.040 not infringe on his. 0:12:37.040 --> 0:12:41.400 Speech because you're not talking about stopping the speech. You're 0:12:41.400 --> 0:12:46.560 talking about not receiving government protection for activity that you 0:12:46.720 --> 0:12:50.800 would like to heighten protection for doesn't stop you from selling. 0:12:50.840 --> 0:12:53.480 It doesn't stop you from selling anywhere as much as 0:12:53.520 --> 0:12:53.959 you want. 0:12:54.880 --> 0:12:57.079 Justice Neil Gorzich pointed to history. 0:12:57.520 --> 0:13:01.000 But at the end of the day, it's pretty hard 0:13:01.000 --> 0:13:04.760 to argue that a tradition that's been around a long 0:13:04.880 --> 0:13:08.760 long time since the founding, you know, common law type stuff, 0:13:09.679 --> 0:13:11.880 is inconsistent with the First Amendment. 0:13:12.280 --> 0:13:15.200 And the Chief Justice said that giving him a trademark 0:13:15.360 --> 0:13:18.920 would have the effect of restricting the speech of other people. 0:13:18.840 --> 0:13:20.959 Because the whole point of the trademark, of course, is 0:13:21.000 --> 0:13:23.920 to prevent other people from doing the same thing. So 0:13:23.960 --> 0:13:27.040 if you win the slogan trump too small or whatever, 0:13:27.720 --> 0:13:29.040 other people can't use it. Right. 0:13:29.559 --> 0:13:32.240 The case revolves around a section of the LANIMAC that 0:13:32.400 --> 0:13:35.480 requires written consent to use the name of a living 0:13:35.520 --> 0:13:38.520 person in a trademark. Joining me to help explain it 0:13:38.559 --> 0:13:42.200 all is intellectual property litigator Terrence Ross, a partner at 0:13:42.280 --> 0:13:46.839 Katon Muchen Rosenman Terry tell us about the procedural background 0:13:47.200 --> 0:13:47.920 of this case. 0:13:48.520 --> 0:13:53.479 Mister Elsert thought trademark registration from the United States Trademark 0:13:53.559 --> 0:13:59.160 Office and the Trademark Examiner handling the application denied it 0:13:59.440 --> 0:14:02.520 as a violation of the landam Act, which is the 0:14:02.559 --> 0:14:07.240 trademark lause. Mister Elster then appealed within the Trademark Office, 0:14:07.360 --> 0:14:10.920 which confirmed the denial, and mister Elster took it to 0:14:10.920 --> 0:14:13.000 the United States Court of Appeals for the Federal Circuit 0:14:13.000 --> 0:14:17.640 here in DC. The Federal Circuit unanimously reversed the decision 0:14:17.920 --> 0:14:21.200 of the Trademark Office on constitutional grounds. It found that, 0:14:21.520 --> 0:14:25.400 at least as applied in this case, section ten point 0:14:25.400 --> 0:14:29.520 fifty two sea of the Landom Act was unconstitutional in 0:14:29.600 --> 0:14:33.920 light of the First Amendment, and the Trademark Office decided 0:14:33.960 --> 0:14:37.160 that this was important enough to appeal to the Supreme 0:14:37.200 --> 0:14:37.960 Court of United States. 0:14:38.200 --> 0:14:41.480 Elster's lawyer told the court that the government's sole interest 0:14:41.520 --> 0:14:45.560 in denying the trademark is protecting the feelings of famous people, 0:14:45.960 --> 0:14:49.720 but that's not a legitimate reason to burden protected speech. 0:14:50.040 --> 0:14:52.480 How did his arguments strike you? It sort of struck 0:14:52.520 --> 0:14:54.200 me as being weak in many ways. 0:14:54.800 --> 0:14:59.480 I thought it was extraordinarily weak. My reaction was that 0:15:00.080 --> 0:15:02.840 mister Elistair's counsel did not do a very good job. 0:15:03.120 --> 0:15:05.360 It was pointed out in the press that this was 0:15:05.360 --> 0:15:08.400 his very first argument to the Supreme Court, but quite 0:15:08.440 --> 0:15:10.840 frankly came across as a first a pallid argument at 0:15:10.840 --> 0:15:14.600 a sword. And indeed his response to this question was 0:15:14.760 --> 0:15:19.200 really a hail mary, because he was unable to answer 0:15:19.560 --> 0:15:24.280 a previous question from Justice Kagan. Justice Kagan had asked 0:15:24.320 --> 0:15:28.040 him for any case that he could think of in 0:15:28.080 --> 0:15:32.080 which the conveying of a government benefit in a position 0:15:32.240 --> 0:15:36.160 neutral viewpoint had been held to be unconstitutional. You know, 0:15:36.160 --> 0:15:37.200 it was crickets in the room. 0:15:37.200 --> 0:15:40.680 He had nothing, nothing except maybe a sinking feeling. 0:15:41.000 --> 0:15:43.760 Yeah, when just so Maior asked this, he went for 0:15:43.880 --> 0:15:47.360 his press conference sound bite, which was, Oh, we can't 0:15:47.400 --> 0:15:49.880 be protecting the feelings of famous people. Oh you know, 0:15:50.000 --> 0:15:53.240 that's actually not what this statute is about. And it 0:15:53.320 --> 0:15:57.920 helps sometimes to read the actual wording of a statute. 0:15:58.000 --> 0:16:01.880 Here fifteen Usc. Ten to fifty to see essentially bars 0:16:02.040 --> 0:16:06.040 registration of a trademark. That quote consists of, or comprises 0:16:06.200 --> 0:16:11.200 a name, portrait, or signature identifying a particular living individual 0:16:11.280 --> 0:16:14.200 except by his written consent. This applies to everybody, applies 0:16:14.200 --> 0:16:16.320 to you, applies to me, applies to the listeners. A 0:16:16.440 --> 0:16:20.840 living person's name and legs can't be used to promote 0:16:20.880 --> 0:16:24.400 another product, and this is fundamental to trademark LOK. Going 0:16:24.440 --> 0:16:27.280 back into the common law is known as passing off, 0:16:27.320 --> 0:16:29.840 you know, its claiming that some famous person had blessed 0:16:29.840 --> 0:16:33.040 this product or was associated with it. And so it 0:16:33.080 --> 0:16:36.800 was very much sort of an absurd response to Justice 0:16:36.880 --> 0:16:42.720 Sodoma Org and really reflected a core problem with their argument, 0:16:42.920 --> 0:16:47.320 which Justice Thomas identified quickly. He asked just straight out 0:16:47.360 --> 0:16:51.600 what's the burden on free speech here, and really didn't 0:16:51.640 --> 0:16:55.000 get an answer because simple fact that, as you said, 0:16:55.000 --> 0:16:58.160 you people are already using the slogan everywhere. The fact 0:16:58.200 --> 0:17:00.760 that you don't get registration does not mean you can't 0:17:01.080 --> 0:17:04.359 use the slogan, and mister Elster himself has already been 0:17:04.480 --> 0:17:06.640 using it. All it means is that he's been denied 0:17:06.840 --> 0:17:10.440 the benefit of registration, which is the ability to exclude, 0:17:10.520 --> 0:17:13.520 in certain circumstances, third parties from using his slogan. 0:17:13.840 --> 0:17:17.600 And the Chief Justice John Roberts pointed out that giving 0:17:17.680 --> 0:17:21.560 him a trademark would have the effect of restricting speech 0:17:22.000 --> 0:17:25.320 by other people who want to use that slogan, and I. 0:17:25.320 --> 0:17:28.440 Think it's a fair point to make that in effect, 0:17:28.720 --> 0:17:34.200 by granting the trademark registration here because of the unique 0:17:34.240 --> 0:17:39.360 category in which it sought. It really does limit other 0:17:39.520 --> 0:17:43.760 people's free speech because this slogan Trump too small is 0:17:43.800 --> 0:17:47.840 apparently commonly used by folks who are opposing former President 0:17:47.880 --> 0:17:49.000 Trump's candidacy. 0:17:49.400 --> 0:17:51.679 So, Terry, we always say you can't tell from their 0:17:51.800 --> 0:17:54.520 oral arguments how the Court is going to rule, But 0:17:54.640 --> 0:17:59.600 it seemed to me that justices across the ideological spectrum 0:18:00.000 --> 0:18:03.080 we're against giving this phrase trademark protection. 0:18:03.520 --> 0:18:06.480 I agree with that. My count was that there was 0:18:06.520 --> 0:18:11.080 a clear majority skeptical of granting registration, and I agree 0:18:11.119 --> 0:18:13.920 with your comment. It's hard to always read or arguments, 0:18:14.119 --> 0:18:19.120 but in this case, particularly, the tonalities of the justice's 0:18:19.240 --> 0:18:25.880 questions really reflect it pretty hardened positions antagonistic to any 0:18:25.920 --> 0:18:26.520 type of register. 0:18:26.640 --> 0:18:26.680 This. 0:18:26.840 --> 0:18:31.640 My count had Justice Thomas, Justice Sodoma or Justice Kagan, 0:18:31.840 --> 0:18:36.680 and Chief Justice roberts As all skeptical, if not outright 0:18:36.800 --> 0:18:39.639 saying they were opposed to registration. Here. In addition, I 0:18:39.680 --> 0:18:45.000 had Justice Gorsich and Alito disagreeing with mister Elster's council 0:18:45.320 --> 0:18:49.000 on different grounds. They historically are opposed to this notion 0:18:49.119 --> 0:18:53.200 that trademark confers a government benefit. But my count, that's 0:18:53.359 --> 0:18:58.199 six justices who seem pretty firmly opposed to registration of 0:18:58.240 --> 0:19:01.520 this trademark. And I really couldn't count maybe the other 0:19:01.760 --> 0:19:03.879 justices as being in favor. They just seem to not 0:19:04.200 --> 0:19:06.720 express an opinion one way or the other. So sick 0:19:06.880 --> 0:19:10.000 zippy is a pretty good starting point for the government here. 0:19:10.440 --> 0:19:13.399 So that leads me to the question, how did a 0:19:13.640 --> 0:19:18.240 unanimous panel of the Federal Circuit allow this trademark? 0:19:18.520 --> 0:19:22.280 June. We could spend a lot of time on decisions 0:19:22.280 --> 0:19:24.520 by the Federal Circuit where I practice a lot, by 0:19:24.520 --> 0:19:27.720 the way, and the level of disrespect according to those 0:19:27.720 --> 0:19:30.400 decisions by the Spring Court in the United States. True, I mean, 0:19:30.560 --> 0:19:33.280 the mere fact that this decision came out of the 0:19:33.320 --> 0:19:37.359 Federal Circuit probably starts off with your points in the 0:19:37.359 --> 0:19:41.280 government's favor here, because the Supreme Court just doesn't respect 0:19:41.680 --> 0:19:45.080 decisions most significant decisions coming out of the Federal Circuit. 0:19:45.280 --> 0:19:49.159 The history of reversal is just phenomenal. And so I mean, 0:19:49.200 --> 0:19:52.119 those of us who pressed the Federal Circuit regular basis say, okay, 0:19:52.160 --> 0:19:55.359 you get granted search the orri out of the Federal Circuit, 0:19:55.560 --> 0:19:57.800 you got a good chance of winning. This is another 0:19:57.880 --> 0:19:58.600 great example. 0:19:59.000 --> 0:20:02.560 Thanks so much, Terry. That's Terence Fross of Catain Euchen Rosenman. 0:20:05.840 --> 0:20:10.639 This is Bloomberg Law with June Grosso from Bloomberg Radio. 0:20:11.040 --> 0:20:13.880 You're listening to a special edition of Bloomberg Law. I'm 0:20:13.960 --> 0:20:16.600 June Grosso. Now we'll take a look at a case 0:20:16.640 --> 0:20:20.280 the Supreme Court could here in twenty twenty four involving 0:20:20.320 --> 0:20:33.960 America's favorite pastimes, the sounds of baseball, not only the 0:20:34.080 --> 0:20:37.720 national pastime and a more than ten billion dollar industry, 0:20:38.040 --> 0:20:41.960 but also the only sport in the country that's exempt 0:20:42.000 --> 0:20:45.280 from the anti trust laws. And now some minor league 0:20:45.280 --> 0:20:49.439 teams are asking the Supreme Court to eliminate baseball's anti 0:20:49.440 --> 0:20:53.400 trust exemption. Why, as they put it in one brief enough. 0:20:53.440 --> 0:20:56.879 Already joining me is anti trust expert Harry First, a 0:20:56.960 --> 0:21:00.760 professor at NYU Law School. Harry tell us how baseball 0:21:01.359 --> 0:21:03.240 got this anti trust exemption. 0:21:04.160 --> 0:21:08.399 Well, this is one of the most reviled exemptions from 0:21:08.600 --> 0:21:12.560 the point of view of anti trust lawyers unless they 0:21:12.600 --> 0:21:17.000 represent baseball companies or teams or leagues, and even the 0:21:17.000 --> 0:21:22.560 courts don't like it. So it came about originally because 0:21:22.600 --> 0:21:26.840 of a decision in nineteen twenty two by the Supreme 0:21:26.920 --> 0:21:31.280 Court called federal baseball, and this is an opinion written 0:21:31.320 --> 0:21:37.640 by Justice Holmes, Oliver Wendell Holmes, distinguished jurists, and it 0:21:37.840 --> 0:21:41.959 was an effort to actually push out some competing leagues. 0:21:42.600 --> 0:21:46.480 And Holmes said that, well, any trust laws don't cover this. 0:21:46.840 --> 0:21:53.320 Baseball is neither commerce nor interstate commerce. It's just sport 0:21:53.720 --> 0:21:58.600 and it just takes place locally. So even though players 0:21:58.800 --> 0:22:02.919 even then travel from state to state, and there was 0:22:02.960 --> 0:22:08.160 a lot of money involved, perhaps Justice Holmes as the 0:22:08.200 --> 0:22:12.200 Boston Brahmin disdain baseball. It was sort of like us 0:22:12.200 --> 0:22:16.240 now raised with a certain kind of entertainment reviewing video games? 0:22:16.359 --> 0:22:20.280 What is that? And is there so much money involved? 0:22:20.280 --> 0:22:23.639 Are you serious? So maybe that was Polme's reaction. I 0:22:23.680 --> 0:22:26.320 don't know, But in any event, that was a decision 0:22:26.520 --> 0:22:29.880 that any trust laws didn't apply. So that's nineteen twenty two. 0:22:30.800 --> 0:22:36.080 The Supreme Court reaffirmed that decision in case called Toolston 0:22:36.200 --> 0:22:40.679 in nineteen fifty three involving New York Yankees. My memory 0:22:40.760 --> 0:22:44.800 is correct, and the Court said, even though the decision 0:22:44.880 --> 0:22:48.880 was sort of dubious when made, it's now precedent, and 0:22:49.640 --> 0:22:53.439 all aspects of that decision had been undermined even in 0:22:53.480 --> 0:22:57.480 the intervening period, the courts had a rather narrow conception 0:22:57.600 --> 0:23:01.240 of what constituted inter state commerce, perhaps in nineteen twenty two, 0:23:01.320 --> 0:23:03.840 but it had expanded clearly in the New Deal era, 0:23:04.200 --> 0:23:08.080 and any trust cases had gone along. And there's no 0:23:08.200 --> 0:23:11.800 doubt that baseball should have been considered interstate commerce all along, 0:23:12.160 --> 0:23:16.160 and certainly a business. But the court said in business 0:23:16.200 --> 0:23:20.440 of baseball is exempt from any trust laws from the Shermanac. 0:23:20.600 --> 0:23:23.320 And then the third case in this is a case 0:23:23.359 --> 0:23:28.119