WEBVTT - A Jesse James Train Robbery and the Three-Strikes Law 0:00:03.200 --> 0:00:07.960 This is Bloombird Law with June Brussel from Bloomberg Radio. 0:00:09.039 --> 0:00:11.960 William Wooden went on a burglary spree at a storage 0:00:12.000 --> 0:00:17.280 facility in Georgia, breaking into one unit, then another by 0:00:17.360 --> 0:00:21.040 crushing the dry wall between them, then another and another, 0:00:21.520 --> 0:00:25.119 stealing from ten units in all. So was that one 0:00:25.239 --> 0:00:29.000 crime or ten crimes? It makes a huge difference in 0:00:29.080 --> 0:00:32.600 sentencing under the federal three strikes law, and the Supreme 0:00:32.640 --> 0:00:36.560 Court justices struggle with that question at oral arguments lost 0:00:36.600 --> 0:00:41.720 October peppering the lawyers with hypotheticals. Justices Stephen Bryan and 0:00:41.760 --> 0:00:47.360 Elena Kagan were particularly inventive. Jesse James, who I know 0:00:47.440 --> 0:00:50.120 what he did because I've seen movies, all right, So 0:00:50.360 --> 0:00:52.640 Jesse James gets on the train, and he goes to 0:00:52.720 --> 0:00:54.840 one person, and then the next person, and then the 0:00:54.880 --> 0:00:57.920 next person takes their stuff, you know, in the next car, 0:00:58.040 --> 0:01:01.480 in the next car, correct, correct, And moreover, you're gonna 0:01:01.520 --> 0:01:03.600 put him in jail for fifteen years, or maybe he 0:01:03.640 --> 0:01:07.200 deserves it. But his cousin, Harry James, only robbed one 0:01:07.280 --> 0:01:10.800 car in one train once, but there were four people 0:01:10.840 --> 0:01:12.399 on it. And then he gave up his life of 0:01:12.440 --> 0:01:16.000 crime and you're saying not just Harry, but also not 0:01:16.080 --> 0:01:19.600 just Jesse, but Harry too, will spent fifteen years in jail. 0:01:19.800 --> 0:01:25.800 Extra Suppose that there was a crime boss, and he 0:01:25.920 --> 0:01:30.039 was a good multitasking crime boss, and he had a 0:01:30.080 --> 0:01:32.120 few phones in front of him. He's sitting in his 0:01:32.200 --> 0:01:35.240 office one day, and on one phone he's arranging a 0:01:35.319 --> 0:01:38.840 sale of illegal drugs, and on another phone he's ordering 0:01:39.280 --> 0:01:43.919 the killing of a competing crime boss. And another phone 0:01:44.319 --> 0:01:48.680 he's involved in an illegal gambling operation. And they're all 0:01:48.720 --> 0:01:52.520 going on very close in time to each other, single 0:01:52.560 --> 0:01:56.480 occasion or three occasions. In a unanimous opinion this week, 0:01:56.760 --> 0:02:00.480 the joice has decided that Wooden had committed one crime 0:02:00.760 --> 0:02:03.480 and so would not be getting the mandatory fifteen year 0:02:03.520 --> 0:02:06.600 prison sentence under the three strikes law. Joining me is 0:02:06.680 --> 0:02:10.120 Jordan Reuben, a reporter with Bloomberg Law. Jordan, give us 0:02:10.120 --> 0:02:12.600 a little bit of the background in the case. The 0:02:12.800 --> 0:02:15.959 defendant in this case, William Wooden. He was sentenced under 0:02:16.120 --> 0:02:19.320 a law called the Armed Career Criminal Act, and that's 0:02:19.320 --> 0:02:23.520 a law that has fifteen year mandatory minimums when a 0:02:23.560 --> 0:02:26.919 defendant is convicted of a federal gun crime and they 0:02:26.919 --> 0:02:31.360 have three or more prior violent felonies or serious drug offenses. 0:02:31.480 --> 0:02:34.480 And so the issue in his case was whether his 0:02:34.600 --> 0:02:39.040 prior offenses counted towards this three strikes law, the Armed 0:02:39.080 --> 0:02:41.799 Career Criminal Act, and it's a law that is being 0:02:41.840 --> 0:02:44.760 litigated all the time at the Supreme Court. Really drives 0:02:44.840 --> 0:02:47.840 the justices nuts because of how difficult it is to 0:02:47.919 --> 0:02:51.639 figure out whether these prior convictions can count. And there's 0:02:51.680 --> 0:02:54.760 just so many issues that arise in trying to figure 0:02:54.800 --> 0:02:57.840 that out. And that was what was happening in Wooden's case. 0:02:58.240 --> 0:03:01.800 Tell Us about the burglary, wouldn't have pleaded to it 0:03:01.880 --> 0:03:06.240 was sort of an escalating crime, but in one place exactly, 0:03:06.320 --> 0:03:08.680 And so it's all about how you describe it, right, 0:03:08.720 --> 0:03:11.960 And the issue here was this specific component of the Act, 0:03:12.080 --> 0:03:16.120 which includes crimes that are quote committed on occasions different 0:03:16.200 --> 0:03:19.160 from another end quote And so the question is what 0:03:19.440 --> 0:03:23.160 counts as an occasion? Sounds simple enough, right, Well, the 0:03:23.240 --> 0:03:26.000 court had a pretty difficult time with it because they 0:03:26.040 --> 0:03:29.680 were looking back at Wooden's prior convictions, namely back to 0:03:29.760 --> 0:03:35.080 this one night in Georgia where he pleaded guilty to 0:03:35.360 --> 0:03:38.840 ten counts of burglary for entering ten units of a 0:03:38.920 --> 0:03:42.200 Georgia mini storage facility on the same night. The question 0:03:42.280 --> 0:03:46.160 was whether that counts as ten separate offenses under this 0:03:46.280 --> 0:03:48.920 career criminal law or just one. And so that all 0:03:48.960 --> 0:03:51.600 came down to the question of whether it was one 0:03:51.640 --> 0:03:55.520 occasion or whether it was ten different occasions, and the Court, 0:03:55.600 --> 0:03:59.119 in an opinion by Justice Kagan, said that counted as 0:03:59.160 --> 0:04:03.480 just one asian based on plain English meaning of the 0:04:03.520 --> 0:04:06.960 word occasion. I think if you gave the average person 0:04:07.040 --> 0:04:10.440 that scenario, they would most likely think it was one crime. 0:04:10.920 --> 0:04:13.760 But yet the Six Circuit Court of Appeals found that 0:04:13.800 --> 0:04:18.520 he committed ten crimes exactly. So before the court's decision 0:04:18.720 --> 0:04:20.960 in what In's case, there was a split in the 0:04:21.000 --> 0:04:24.200 appeals courts, and there were courts of appeals like the 0:04:24.240 --> 0:04:27.680 Six Circuit, which kind of bros time, and they looked 0:04:27.720 --> 0:04:31.040 at it from a standpoint of was the crime completed 0:04:31.240 --> 0:04:33.840 at each moment, so at each point where what had 0:04:34.160 --> 0:04:37.760 entered a different storage unit, and so therefore it counted 0:04:37.839 --> 0:04:41.799 as ten different offenses. Other courts took what Justice Kegan's 0:04:41.800 --> 0:04:44.560 opinion called a more holistic approach and looked at the 0:04:44.680 --> 0:04:48.440 broader circumstances sort of from more of a common sense 0:04:48.480 --> 0:04:51.159 point of view, but different courts looked at it different ways, 0:04:51.200 --> 0:04:53.440 and so that's why the Supreme Court took the case 0:04:53.480 --> 0:04:56.760 in order to clear up the split. I love Justice 0:04:56.839 --> 0:05:01.320 Kagan's opinions, and in this one she used examples involving 0:05:01.400 --> 0:05:05.320 a wedding ceremony and a bar room brawl exactly. There 0:05:05.400 --> 0:05:09.160 was a lot of colorful aspects to just Cagan's opinion. 0:05:09.240 --> 0:05:11.400 She's a great writer. He talked about, for example, how 0:05:11.440 --> 0:05:14.120 if someone had busted out on a condo line or 0:05:14.160 --> 0:05:17.040 something like that while you were giving your wedding vows, 0:05:17.160 --> 0:05:20.440 that would all happen during the wedding occasion. But obviously 0:05:20.480 --> 0:05:23.800 that's not the way that normal people will refer to 0:05:23.839 --> 0:05:26.480 the term. And so that was kind of the thrust 0:05:26.520 --> 0:05:29.599 of Kegan's opinion, all about trying to describe it in 0:05:29.600 --> 0:05:33.359 a way that normal people would talk about things. So 0:05:33.440 --> 0:05:38.440 now she also put forth a couple of factors that 0:05:38.560 --> 0:05:42.400 courts could consider in the future, whether the offenses were 0:05:42.400 --> 0:05:46.280 committed close in time in an uninterrupted course of conduct, 0:05:46.600 --> 0:05:49.320 whether the occurred in one place, whether they shared a 0:05:49.360 --> 0:05:53.719 common scheme or purpose. And Justice course that didn't agree 0:05:53.760 --> 0:05:58.159 with that right. So it was an interesting opinion in 0:05:58.240 --> 0:06:00.359 terms of the breakdown, because really all the US has 0:06:00.440 --> 0:06:03.520 agreed on the bottom line in terms of the government 0:06:03.839 --> 0:06:06.520 being wrong here, but there were some differences of opinion 0:06:06.560 --> 0:06:09.640 about how to go about arriving in that bottom line. 0:06:09.680 --> 0:06:13.719 And so Justice Gorsetch he took issue with this multi 0:06:13.760 --> 0:06:17.160 factor test. He thought that the court was really making 0:06:17.200 --> 0:06:20.360 it more complicated than it had to be. His opinion 0:06:20.440 --> 0:06:24.640 was all about something called lenity, which is this longstanding 0:06:24.720 --> 0:06:29.360 rule that in ambiguous situations courts should defer to the defense. 0:06:29.440 --> 0:06:32.159 And so Gorgius said, you don't need to go through 0:06:32.160 --> 0:06:35.119 all this multi factor test, which may be helpful, maybe 0:06:35.160 --> 0:06:38.760 not just decide the case based on lenity, which, by 0:06:38.800 --> 0:06:41.159 the way, he wrote, is something that should be playing 0:06:41.200 --> 0:06:44.680 a bigger role in the law generally. And he was 0:06:44.839 --> 0:06:48.640 joined by Justice Sonya. So to Mayor, they're often of 0:06:48.800 --> 0:06:53.839 like mind in criminal cases. Yeah, that's certainly where we'll 0:06:53.839 --> 0:06:56.400 see them together. Certainly not of a like mind in 0:06:56.480 --> 0:06:59.000 many other cases, but we do see them kind of 0:06:59.040 --> 0:07:02.680 forming this, you know, semi regular odd couple in these 0:07:02.720 --> 0:07:05.400 criminal cases. Certainly not every type of criminal case, like 0:07:05.440 --> 0:07:08.480 the death penalty, for example, but here we'll have them 0:07:08.520 --> 0:07:11.920 speaking out on these broader criminal issues, and this was 0:07:12.000 --> 0:07:15.040 the latest example of that. So you had so tomor 0:07:15.120 --> 0:07:17.920 as you say, joining Gorsage in this call to give 0:07:18.040 --> 0:07:21.000 Lennedy more of a prominent role in the courts cases 0:07:21.120 --> 0:07:27.200 in general. What about justice Kavanaugh, he wrote a separate concurrence, right, 0:07:27.280 --> 0:07:31.280 So Kavanaugh wrote basically to respond to Gorsage's opinion. And 0:07:31.320 --> 0:07:35.480 so Kavanaugh, he said, he agreed with the general problem 0:07:35.480 --> 0:07:37.960 that Gorsach was raising in terms of making sure that 0:07:38.200 --> 0:07:41.960 people have fair notice of what's illegal and do process 0:07:42.000 --> 0:07:46.640 and all of that. Kavanaugh thought that Lennedy properly plays 0:07:46.680 --> 0:07:48.440 a small role in the law, and so he would 0:07:48.480 --> 0:07:51.840 focus more on what's called men's reya, the presumption that 0:07:52.240 --> 0:07:55.040 people have a guilty mind and that the government proved 0:07:55.040 --> 0:07:58.600 that in the course of a prosecution. So Kavanaugh thought 0:07:58.600 --> 0:08:01.840 that this men's rea assumption, as opposed to lenity, would 0:08:01.840 --> 0:08:05.320 take care of the problem that Gorsitch was raising. And 0:08:05.360 --> 0:08:08.680 these were all in concurring opinions. It wasn't really any 0:08:08.880 --> 0:08:12.800 strong discent per se. Everyone was basically an agreement on 0:08:12.800 --> 0:08:14.600 the bottom line of what was happening. But there were 0:08:14.720 --> 0:08:19.280 some interesting sort of side conversations about the law in general. 0:08:19.880 --> 0:08:24.160 You spoke to someone who said that this might indicate 0:08:24.240 --> 0:08:27.239 that the subject of lenity is going to be coming 0:08:27.320 --> 0:08:30.320 up again at the court. That's right. So a couple 0:08:30.320 --> 0:08:32.600 of people, I suppose to after the opinion both led 0:08:32.760 --> 0:08:36.839 this lenity issue as an interesting topic that again as 0:08:36.840 --> 0:08:41.800 shown by this fairly lengthy conversation between Gorsich and Kavanaugh. Again, 0:08:41.840 --> 0:08:43.520 and this is something that didn't come up at all 0:08:43.960 --> 0:08:46.560 in Kagan's opinion. That's part of why it's noteworthy that 0:08:46.640 --> 0:08:50.720 this was a conversation taking place almost entirely on the side, 0:08:50.760 --> 0:08:52.840 so to speak, and a show that this was a 0:08:52.920 --> 0:08:55.679 live issue from a couple of the newer justices and 0:08:55.720 --> 0:08:58.320 again joined by so do Mayor as well, that this 0:08:58.400 --> 0:09:01.000 is something that's on at least some of the justice's 0:09:01.040 --> 0:09:03.200 mind and it's something that we're going to be looking 0:09:03.200 --> 0:09:07.800 out for going forward. Is there a retroactive effect to 0:09:07.960 --> 0:09:12.760 this decision? So, I think most likely not. Again, when 0:09:12.760 --> 0:09:14.840 the court is ruling on the criminal issue, they're not 0:09:14.960 --> 0:09:17.840 dealing with the question of retroactivity. I think as a 0:09:17.880 --> 0:09:20.360 general matter, it's fair to say that this is a 0:09:20.400 --> 0:09:25.040 court that is not in favor of retroactively applying rulings, 0:09:25.040 --> 0:09:27.600 and so what's going to happen next For people who 0:09:27.679 --> 0:09:30.480 have already been sentenced in their case, they're already underway. 0:09:30.520 --> 0:09:33.800 It's going to come down to a somewhat tricky procedural 0:09:33.920 --> 0:09:37.360 mechanism of how far along in the appellate process they are. 0:09:37.440 --> 0:09:39.440 So I think it's going to be a case where 0:09:39.520 --> 0:09:41.959 some people might be able to benefit from this, some 0:09:42.160 --> 0:09:44.880 might not, depending on how far along they are in 0:09:44.920 --> 0:09:46.719 the process. But at the very least, it's going to 0:09:46.800 --> 0:09:49.560 be something that going forward, people who are in the 0:09:49.640 --> 0:09:52.080 type of situation that would enter in in all the 0:09:52.120 --> 0:09:54.800 circuits now, not just the ones who ruled more in 0:09:54.840 --> 0:09:56.280 the way that he wanted to, are going to be 0:09:56.320 --> 0:10:00.920 able to take advantage of this rule. That's better for defendants. Jordan. 0:10:01.000 --> 0:10:03.560 Is this a decision that will affect a lot of defendants? 0:10:03.920 --> 0:10:07.160 I think it will. This is a very frequently litigated statute. 0:10:07.200 --> 0:10:10.240 That's why the government fought so hard in this case. 0:10:10.440 --> 0:10:13.200 So these cases are being litigated at the court every 0:10:13.280 --> 0:10:15.199 year because it's the law that is being used all 0:10:15.200 --> 0:10:18.079 the time. So they're easily going to be hundreds, it's 0:10:18.120 --> 0:10:21.480 not thousands, certainly going forward over the years that are 0:10:21.520 --> 0:10:24.720 going to be affected by the decision. Is it a 0:10:24.800 --> 0:10:28.120 badly written law? Is that the reason why it comes 0:10:28.160 --> 0:10:31.440 up so often? That's probably what the court would say 0:10:32.200 --> 0:10:35.840 is part of it, and it's been amended at various 0:10:35.920 --> 0:10:40.680 points over the years, but it's not, I think, as 0:10:40.720 --> 0:10:43.160 the lawyers and judges would say, a model of clarity. 0:10:43.240 --> 0:10:46.200 And so that's part of what the issue has been, 0:10:46.240 --> 0:10:48.960 but it's not just that. Part of it is the 0:10:49.000 --> 0:10:51.560 way that the court has interpreted the law over the 0:10:51.600 --> 0:10:54.800 years has then lent itself to more issues arising and 0:10:54.840 --> 0:10:58.040 then how to interpret it going forward. And so it's 0:10:58.040 --> 0:11:01.920 really just had kind of a long and strange life 0:11:02.040 --> 0:11:05.120 that partly because of how it was written, partly because 0:11:05.120 --> 0:11:08.760 of how the court has interpreted that's lent itself to 0:11:09.040 --> 0:11:15.160 sprouting additional litigation. A very judicious answer, thanks Jordan's that's 0:11:15.200 --> 0:11:19.200 Bloomberg Law reporter Jordan Ruben. According to the Bureau of Prisons, 0:11:19.320 --> 0:11:22.680 Wooden is currently serving a sentence of about sixteen years 0:11:22.679 --> 0:11:26.080 in a low security facility in Arkansas with a current 0:11:26.080 --> 0:11:31.720 release date in Without the three strikes enhancement, his recommended 0:11:31.760 --> 0:11:35.640 sentence would have been about two years instead of nearly sixteen. 0:11:36.240 --> 0:11:40.000 His attorney, Alan Kadem says Wooden has already served much 0:11:40.040 --> 0:11:43.120 more than two years, and that once he's resentenced, we 0:11:43.200 --> 0:11:45.240 expect him to be sent back home to his family. 0:11:47.120 --> 0:11:50.320 It's the latest twist in a legal saga that began 0:11:50.440 --> 0:11:55.160 after Trump supporters accused Smartmatic and Dominion voting systems of 0:11:55.200 --> 0:11:58.640 being at the center of a vast international conspiracy to 0:11:58.760 --> 0:12:03.000 rig the election again former President Trump, and that conspiracy 0:12:03.120 --> 0:12:07.080 theory was echoed on air at Fox News. Fox News 0:12:07.200 --> 0:12:10.240 was not able to dodge at two point seven billion 0:12:10.280 --> 0:12:14.240 dollar defamation lawsuit over false claims the network aired about 0:12:14.240 --> 0:12:19.280 smart Maddox role in the election. Justice David Cohen says, quote, 0:12:19.480 --> 0:12:22.320 at a minimum, Fox News turned a blind eye to 0:12:22.400 --> 0:12:26.520 a litany of outrageous claims about plaintiffs, unprecedented in the 0:12:26.600 --> 0:12:31.400 history of American elections, so inherently improbable that it evinced 0:12:31.440 --> 0:12:35.160 a reckless disregard for the truth. The claims against host 0:12:35.200 --> 0:12:38.480 Maria Barter Romo and lew Dobbs can also go forward, 0:12:38.800 --> 0:12:43.040 but the judge dismissed claims against Janine Pierro, Rudy Giuliani, 0:12:43.440 --> 0:12:47.439 and Sidney Powell. Former Trump campaign lawyer joining me is 0:12:47.520 --> 0:12:51.400 Andrew Kuppelman, a professor of law, at Northwestern University. Tell 0:12:51.520 --> 0:12:55.840 us a little about Smart Maddox claims. Here, Smart Madock 0:12:56.200 --> 0:13:04.880 is essentially claiming that defendants were reckless in making baseless 0:13:04.920 --> 0:13:08.880 claims but damaged Smart Maddox business. The reason why we 0:13:08.960 --> 0:13:13.280 have defamation law is because you can really hurt somebody 0:13:13.480 --> 0:13:17.959 by spreading falsehoods about the quality of their business. So 0:13:18.080 --> 0:13:21.760 for hundreds of years at common law, the law has 0:13:21.800 --> 0:13:25.960 protected people from that kind of reckless defamation. And that's 0:13:26.000 --> 0:13:30.960 what happened here. The defendants, at least allegedly didn't care 0:13:30.960 --> 0:13:37.040 at all what was true. They just wanted advantage by 0:13:37.720 --> 0:13:42.920 using any basis for claiming that Trump had been preudulently elected, 0:13:43.240 --> 0:13:47.760 and that included making entirely baseless claims about the voting machines. 0:13:48.360 --> 0:13:53.120 So tell us what the standard is when you're suing 0:13:53.880 --> 0:13:59.079 a media organization like Fox News. When a public figure 0:13:59.640 --> 0:14:04.800 sue was a media organization for falsehoods about that public figure, 0:14:05.080 --> 0:14:10.480 The Supreme Court has said that the person complaining that 0:14:11.000 --> 0:14:16.200 they were defamed has to show that the news organization 0:14:16.800 --> 0:14:21.560 was or the speaker was. In this because in this case, 0:14:21.600 --> 0:14:26.000 the speaker wasn't a news organization. That the speaker uttered 0:14:26.040 --> 0:14:30.440 the falsehood with reckless disregard of whether the speech was 0:14:30.520 --> 0:14:36.720 true or false. So here the voting machine companies had 0:14:36.760 --> 0:14:40.960 to prove that the speakers were reckless they did not 0:14:41.400 --> 0:14:46.479 care who they hurt. So a typical example of recklessness 0:14:46.560 --> 0:14:50.600 is somebody is speeding down a street where children are playing. 0:14:51.320 --> 0:14:53.480 It doesn't care whether he hurts the children or not. 0:14:53.560 --> 0:14:57.200 Doesn't mean to hurt the children. He's just having fun driving, 0:14:58.000 --> 0:15:01.160 and he is indifferent to who he heard. That's what 0:15:01.280 --> 0:15:06.120 you've got to prove in defamation claim brought by a 0:15:06.160 --> 0:15:09.840 public figure. That's a very high standard. We saw in 0:15:09.880 --> 0:15:12.920 the Sarah peal And trial that the jury did not 0:15:13.080 --> 0:15:17.480 find for her on using that standard. Mhmm. But here, 0:15:17.680 --> 0:15:24.320 at least as alleged, the defendants said extremely damaging things 0:15:24.800 --> 0:15:30.080 about the manufacturers of the voting machines with no evidence 0:15:30.120 --> 0:15:34.320 at all, no idea of whether it was true or false. 0:15:35.040 --> 0:15:41.480 So again, as alleged, the allegation is that they were 0:15:41.720 --> 0:15:44.760 entirely reckless, didn't care whether it was true or not. 0:15:45.280 --> 0:15:50.280 This was not an honest mistake, this was utter indifference 0:15:50.480 --> 0:15:52.520 as to whether what they were saying was true or not. 0:15:53.640 --> 0:15:58.040 In court filings, Fox argued that it repeatedly asked the 0:15:58.120 --> 0:16:03.720 high profile Trump supporters for proof substantiating their accusations about 0:16:03.760 --> 0:16:07.880 smart Matic, and they failed to produce any. Does that 0:16:07.960 --> 0:16:14.280 cut four or against Fox? Well? Uh, they've got an 0:16:14.320 --> 0:16:19.520 obligation not to be reckless if they take their anchor's words. 0:16:19.560 --> 0:16:25.040 The question is does a reasonable person believe what the 0:16:25.080 --> 0:16:30.560 anchors are telling them? If I'm thinking about speeding down 0:16:30.560 --> 0:16:33.920 a street where children are playing, and the person who 0:16:34.000 --> 0:16:36.040 is sitting next to me in the car tells me, oh, 0:16:36.080 --> 0:16:39.200 those children are immortal gods. Even if you drive into 0:16:39.240 --> 0:16:42.040 them at high speed, they won't be heard a bit. Uh, 0:16:42.520 --> 0:16:45.920 I'm not entitled to believe that. Fox News Media said 0:16:45.960 --> 0:16:48.240 in a statement that it plans to appeal as well 0:16:48.280 --> 0:16:52.360 as file suit against Smartmatic under New York's anti slap law, 0:16:52.640 --> 0:16:56.560 which bars the filing of cases intended to chill free speech. 0:16:57.040 --> 0:17:00.160 Could there be a split verdict in this case a 0:17:00.240 --> 0:17:05.640 jury find the individual host libel but not Fox for example, 0:17:05.960 --> 0:17:10.879 or vice versa. With respect to each individual defendant, the 0:17:10.960 --> 0:17:15.080 plaintiff has to prove recklessness. It's entirely possible that some 0:17:15.240 --> 0:17:19.760 of the defendants and not others, are more demonstrably reckless. 0:17:20.440 --> 0:17:23.040 The plaintiff has got to prove that with respect to 0:17:23.119 --> 0:17:28.240 each individual defendant. There's also one point six billion dollar 0:17:28.359 --> 0:17:33.600 suit by dominion against Fox. Then a Delaware judge refused 0:17:33.600 --> 0:17:38.240 to dismiss. Does the two refusals to dismiss tell you anything. 0:17:39.680 --> 0:17:44.960 It tells you that the allegations at least are enough 0:17:45.080 --> 0:17:49.439 to go to trial. The allegation is recklessness. There is 0:17:49.520 --> 0:17:54.679 some evidence to support it, and there is enough evidence 0:17:55.320 --> 0:17:58.400 that this can reasonably be put in front of a jury. 0:17:58.720 --> 0:18:02.159 If the plaintiffs had no evidence at all and no 0:18:02.359 --> 0:18:06.080 likelihood of producing any such evidence, then the drug judge 0:18:06.080 --> 0:18:09.320 would be obligated to dismiss. But there actually seems to 0:18:09.359 --> 0:18:15.119 be substantial evidence. The Fox kept on broadcasting these allegations 0:18:15.160 --> 0:18:18.119 against the voting machine companies with no basis at all 0:18:18.160 --> 0:18:22.199 for believing that they were true. Dominion and Smart Manic 0:18:22.480 --> 0:18:27.280 could show broadcast after broadcast after broadcast where these allegations 0:18:27.280 --> 0:18:33.160 were made. They can show multiple broadcasts in which these 0:18:33.240 --> 0:18:40.000 false allegations were made. Fox can defend by showing that 0:18:40.119 --> 0:18:45.200 it had some basis for thinking. So the case that 0:18:45.280 --> 0:18:48.280 the plaintiffs are going to make is that Fox had 0:18:48.359 --> 0:18:51.760 no basis at all for believing that these allegations were true, 0:18:53.080 --> 0:18:58.560 and to repeatedly broadcast such damaging allegations when you've got 0:18:58.640 --> 0:19:02.600 no reason to think that they are true probably rises 0:19:02.640 --> 0:19:06.720 to the standard of recklessness. So what are the Are 0:19:06.720 --> 0:19:12.159 there any long term implications if this lawsuit succeeds. Do 0:19:12.200 --> 0:19:15.119 you think it will stop people at Fox or at 0:19:15.119 --> 0:19:21.480 other networks from making outrageous claims without a new proof. Well, 0:19:21.520 --> 0:19:25.040 this recklessness standard has been the law for more than 0:19:25.080 --> 0:19:30.600 fifty years, and news organizations are careful for the most 0:19:30.640 --> 0:19:36.399 part about what they publish. News organizations routinely employ lawyers 0:19:36.440 --> 0:19:40.520 to look over stories that might get one sued, and 0:19:40.640 --> 0:19:44.680 the general rule within news offices is that if you've 0:19:44.720 --> 0:19:51.040 got enough of a basis for making sometimes extremely damaging 0:19:51.080 --> 0:19:57.400 allegations against particular public figures, then you go ahead and publish, 0:19:57.640 --> 0:20:01.199 but the lawyers check to make sure that there is 0:20:01.480 --> 0:20:05.720 some basis for thinking that what you are saying is true, 0:20:06.320 --> 0:20:10.440 that you are not simply being reckless. I don't know 0:20:10.760 --> 0:20:13.440 what Fox's lawyers were doing while all of this was 0:20:13.480 --> 0:20:18.600 going on. There's been some talk, especially during the Palin trial, 0:20:19.200 --> 0:20:23.080 that the effort was to get the case to the 0:20:23.119 --> 0:20:26.080 Supreme Court because there are some justices on the Court 0:20:26.119 --> 0:20:33.040 who might want to revisit the Sullivan standard. Uh, that's possible, 0:20:33.119 --> 0:20:37.679 although the Palen case UH wasn't an appropriate vehicle to 0:20:37.720 --> 0:20:42.120 do that because the Sullivan standard is also New York law, 0:20:43.080 --> 0:20:47.399 and Palen sued in New York. UH towart suit in 0:20:47.480 --> 0:20:50.440 New York is governed by the state law of New York, 0:20:50.480 --> 0:20:53.120 which the U. S. Supreme Court has no jurisdiction over. 0:20:53.640 --> 0:20:56.200 So the Palin case would not be an appropriate case 0:20:56.640 --> 0:20:59.920 for reversing the standard of New York Times versus Sullivan 0:21:00.480 --> 0:21:03.960 because there are independent and adequate grounds under state law 0:21:04.080 --> 0:21:08.480 for the result. Even if the Palin case went up 0:21:08.520 --> 0:21:11.080 to the Supreme Court and the Supreme Court wanted to 0:21:11.160 --> 0:21:15.600 discard Sullivan, Palin would still lose under state law on 0:21:15.680 --> 0:21:18.440 that basis. I contindently predict that the Supreme Court will 0:21:18.480 --> 0:21:21.520 not take her case. Is the Sullivan standard in danger? 0:21:21.960 --> 0:21:25.880 Is it too favorable to media organizations as I referred 0:21:25.920 --> 0:21:30.440 to earlier To Supreme Court Justices Clarence Thomas and Neil 0:21:30.480 --> 0:21:34.960 Gorsch call for the Court to reconsider New York Times v. 0:21:35.160 --> 0:21:39.760 Sullivan in descents last July. So, what's your opinion of 0:21:39.800 --> 0:21:44.320 the Sullivan standard. I think that the Sullivan standard has 0:21:44.560 --> 0:21:52.720 been good for truthful reporting of news. Before the Sullivan standard, uh, 0:21:52.760 --> 0:21:58.600 if I broadcast something that was false, even if I 0:21:58.680 --> 0:22:02.160 was reasonable and a reasonable basis for thinking that it 0:22:02.240 --> 0:22:05.600 was true, if it turned out to be false, I 0:22:05.600 --> 0:22:09.399 could still be sued and I was liable regardless of 0:22:09.480 --> 0:22:13.240 my state of mind. That had a real chilling effect 0:22:13.440 --> 0:22:16.800 on truthful news reporting. So the court was right to 0:22:16.840 --> 0:22:22.040 adopt the Sullivan standard because a pre existing defamation law 0:22:22.440 --> 0:22:25.600 just didn't place any weight at all on the public's 0:22:25.720 --> 0:22:31.199 interest in knowing the news. The earlier defamation standard was 0:22:31.320 --> 0:22:37.960 crafted in Renaissance England, when there was a monarchy, there 0:22:38.119 --> 0:22:42.199 was no democracy for the press to serve, and the 0:22:42.240 --> 0:22:46.960 public interest in news just didn't figure at all in 0:22:47.000 --> 0:22:51.520 the court's crafting of the law. The law has to 0:22:51.560 --> 0:22:55.080 be different in a democracy. In a democracy, it has 0:22:55.119 --> 0:22:59.560 to be okay to say derogatory things about public officials. 0:23:00.320 --> 0:23:03.639 Thanks for being on the show. That's Professor Andrew Koppelman 0:23:03.960 --> 0:23:07.280 of Northwestern Law School, and that's it for this edition 0:23:07.320 --> 0:23:09.959 of the Bloomberg Law Show. Remember you can always get 0:23:10.000 --> 0:23:13.159 the latest legal news on our Bloomberg Law podcast. You 0:23:13.200 --> 0:23:17.200 can find them on Apple Podcasts, Spotify, and at www 0:23:17.400 --> 0:23:21.679 dot bloomberg dot com, slash podcast, Slash Law, and remember 0:23:21.720 --> 0:23:24.400 to tune into The Bloomberg Law Show every week night 0:23:24.480 --> 0:23:27.800 at ten p m. Wall Street Time. I'm June Grossow, 0:23:27.880 --> 0:23:29.480 and you're listening to Bloomberg