Speaker 1: You're listening to Bloomberg Law with June Grasso from Bloomberg Radio.
Speaker 1: In the face of more and more disinformation on different platforms,
Speaker 1: what can be done to ensure that American voters can
Speaker 1: make informed decisions in free and fair elections? Joining me
Speaker 1: is Richard Hassan, a professor of law and political science
Speaker 1: at the University of California, Irvine. His new book is
Speaker 1: Cheap Speech. How Disinformation poisons Our Politics and How to
Speaker 1: Cure it. It's hard to believe that more than a
Speaker 1: year after the presidential election, there are still so many
Speaker 1: people who believe that the election was stolen from former
Speaker 1: President Donald Trump, despite all the court rulings to the contrary.
Speaker 1: How did he manage this or how did this come about? Well?
Speaker 1: A big reason for the continued persistence of belief and
Speaker 1: the false claim that the election was stolen is the
Speaker 1: that Donald Trump, the former president, was able to communicate
Speaker 1: this idea directly to voters and to others through his
Speaker 1: platforms on social media. If we lived in the old
Speaker 1: technological days, when there were just a few television stations,
Speaker 1: some newspapers, and a few other ways of getting news,
Speaker 1: it would have been hard for someone like Trump to
Speaker 1: have a platform where he could, in an unmediated way
Speaker 1: repeat the false claim. Um. But in our new social media,
Speaker 1: cable news environment, it's very easy to have repetition of
Speaker 1: these claims. By one count in the New York Times,
Speaker 1: donald Trump went to Twitter about four hundred times between
Speaker 1: the day of election Day in early November and November
Speaker 1: nine to make the false claim that the election was told.
Speaker 1: And so I think you can draw a pretty straight
Speaker 1: line from Trump's statements to both the belief among Republicans today,
Speaker 1: among some Republicans today that the election was stolen, as
Speaker 1: well as the January six insurrection. You may remember it
Speaker 1: was Donald Trump who first on Twitter invited his supporters
Speaker 1: to a quote wild time in Washington, d C. On
Speaker 1: January six, the date of Congress counted the Electoral College votes.
Speaker 1: Describe what cheap speech is. So the term cheap speech
Speaker 1: is not originally mine. It originates with a professor at
Speaker 1: U c. L. He was writing back in an article
Speaker 1: Leah Law Journal, an article called cheap speech and what
Speaker 1: it will do about the upcoming uh information revolution We
Speaker 1: were about to have. Where we go from that scarcity
Speaker 1: of means of communicating just a few television and radio
Speaker 1: stations and some newspapers to a flood of speech. And
Speaker 1: Box saw this as a great opportunity. You know, back
Speaker 1: in the fifties, if you didn't like something in the
Speaker 1: New York Times, you could write a letter to the
Speaker 1: or you know, if you're lucky, it would get printed,
Speaker 1: and otherwise you could just yell into the winds. And now,
Speaker 1: of course everyone can have a platform and can say
Speaker 1: whatever they like, and the only limit on how much
Speaker 1: it spreads is how much people want to read or
Speaker 1: hear what you have to say. So he saw the
Speaker 1: loss of intermediaries as the most good thing for democracy
Speaker 1: and for opening up channels of communication. And I think
Speaker 1: there are many good things that have happened with the
Speaker 1: change to this cheap speech era, but it also has
Speaker 1: a dark side. And in the book Cheap Speech, I
Speaker 1: argue that there's a second meaning to the term, which
Speaker 1: is that what we have today is a system that
Speaker 1: privileges low value speech over high value speech. And what
Speaker 1: I mean by that is, I think for voters in
Speaker 1: the elections, one of the highest valued speeches investigative journalism
Speaker 1: by journalists who spent a lot of time, a lot
Speaker 1: of effort, very expensive to figure out what's going on,
Speaker 1: a hold politicians accountable for what they're doing. That's really
Speaker 1: hard to produce, really expensive to produce, and the economic
Speaker 1: model that supports that has collapsed as advertising dollars have
Speaker 1: shifted to places like Google and Facebook. But creating literally
Speaker 1: fake news, you know, making things up and putting them
Speaker 1: on a nice looking website that looks like the news
Speaker 1: that that's very cheap to do, and there's actually some
Speaker 1: demand for that now for a bunch of complicated reasons.
Speaker 1: And so we live in a cheap speech system where um,
Speaker 1: not everything that voters should have easy access to is available, um.
Speaker 1: And lots of things that might distract voters or mislead
Speaker 1: voters that's very easy to get. And so with the
Speaker 1: loss of intermediaries, it's harder for voters to make competent decisions.
Speaker 1: It strikes me that if someone who watches only one
Speaker 1: news channel, let's say Fox, comes away with different information
Speaker 1: a different viewpoint than someone who watches let's say CNN.
Speaker 1: And as you write in your book, there's no Walter
Speaker 1: Cronkite anymore, like a trusted source of information that people
Speaker 1: can go to, right, So, you know, it's just totally
Speaker 1: different atmosphere, And the question is, you know, how do
Speaker 1: you get voters the good information that they need when
Speaker 1: we're all not just having different opinions about things, but
Speaker 1: a different set of facts about what's going on. All
Speaker 1: school About his book Cheap Speech, there are fears expressed
Speaker 1: all the time that we're losing our democracy. Is it
Speaker 1: the threat to democracy from cheap Speech? Is that more dangerous?
Speaker 1: Or is it the threat just from people who are
Speaker 1: taking over some local and state government's election systems, you know,
Speaker 1: the conspiracy theorists, the believers in Trump having won the election.
Speaker 1: Is that more dangerous than the Cheap Speech? Well, I
Speaker 1: think I wouldn't separate the two because I think one
Speaker 1: of the reasons why we had the January six insurrection,
Speaker 1: why there are candidates running for office to run elections
Speaker 1: who now say that election was stolen despite all reliable
Speaker 1: evidence of the contrary, is because we live in this
Speaker 1: um media environment in which there is no penalty for
Speaker 1: making these kind of statements, and a government penalty, but
Speaker 1: I mean a penalty in the court of public opinion. People.
Speaker 1: People don't just laugh away conspiracy theories and theories of
Speaker 1: stolen elections. But when you have a political system where
Speaker 1: millions of people don't believe that the election was legitimately run,
Speaker 1: they might be more willing to tolerate an attempt to
Speaker 1: steal back the election of the next time around. And so,
Speaker 1: you know, I really think that there was, before we
Speaker 1: had the social media revolution, already polarization, but social media
Speaker 1: has made it more polarized. We already had some people
Speaker 1: who don't have full respect for our democratic process, but
Speaker 1: the media environment makes it easier to spread those ideas
Speaker 1: and also for people to find each other. So one
Speaker 1: of the things that we saw about January six is
Speaker 1: not only were there people who embrace the conspiracy theories
Speaker 1: about the election being stolen, but they could use Facebook
Speaker 1: groups to find each other to organize. Right the communications revolution,
Speaker 1: people from all over the country could find each other.
Speaker 1: There may be only one in a hundred thousand people
Speaker 1: who are willing to do something, but when you can
Speaker 1: ban them all together from across the country, they could
Speaker 1: be much more powerful than you know, if people were
Speaker 1: trying to find each other in old fashioned ways. And
Speaker 1: I'm not saying that we should return to the days
Speaker 1: of Walter Cronkite. I mean, there was a lot of
Speaker 1: important news that wasn't covered, And think about the George
Speaker 1: Floyd racial justice movement. Much easier to organize when you
Speaker 1: have the ability to share information, to share videos of
Speaker 1: police brutality, etcetera. But we have to think about what
Speaker 1: we can do to give voters the tools that they
Speaker 1: need to be able to get accurate information to understand
Speaker 1: what's going on in our elections and our democracy. There
Speaker 1: are some who say more speech is better, more speech helps.
Speaker 1: Do you think that there should be laws limiting speech?
Speaker 1: So generally speaking, I don't favor laws limiting speech. I
Speaker 1: only have two small exceptions to that in the proposals
Speaker 1: in my book Cheap Speech, both of which the Supreme
Speaker 1: Court has indicated our constitutional One are laws that limit
Speaker 1: foreign interference in American elections. In the Supreme Court, in
Speaker 1: a case called Blueman versus Federal Election Commission, affirmed a
Speaker 1: lower court ruling that such laws don't violate the First Amendment.
Speaker 1: The other is a set of laws that would that
Speaker 1: would ban empirically verifiable false election speech. So if you
Speaker 1: lie about when, where, or how people vote. We have
Speaker 1: a case that's pending right now about a person who
Speaker 1: live that the that you could vote by text, and
Speaker 1: he directed those messages to African American voters. In the election,
Speaker 1: about five thousand people tried to vote by text or hashtag,
Speaker 1: but how many of them ultimately realized were able to vote.
Speaker 1: But that sort of space should be I think outlawed.
Speaker 1: That's very very narrow. That doesn't apply to most of
Speaker 1: the kinds of troubling state about elections that we hear.
Speaker 1: Most of what I want to do is to enhance
Speaker 1: what voters know. So, for example, I want to improve
Speaker 1: our disclosure laws so if you're actually being targeted in
Speaker 1: uh use an example in Alabama, we had some Democratic
Speaker 1: operatives who pretended to be very conservative Baptists supporting Roy Moore,
Speaker 1: trying to claim that Roy Moore would would want to
Speaker 1: get rid of alcohol in the state of Alabama as
Speaker 1: a way of trying to get these Republican voters not
Speaker 1: to vote. I think that Alabama voters would want to
Speaker 1: know that these conservative Baptists were actually liberal Democrats, or
Speaker 1: that it wasn't African Americans trying to convince people that
Speaker 1: Hillary Clinton doesn't believe in black lives matter. It was
Speaker 1: Russian operatives in a boiler room in St. Petersburg. So
Speaker 1: improved disclosure as well as labeling altered videos so called
Speaker 1: deep fakes, has altered that people know what they're seeing,
Speaker 1: whether they can believe what they see with their own eyes.
Speaker 1: Tools like that on the legal side, I think would
Speaker 1: be the most helpful. In the past, the risk of
Speaker 1: stolen elections seem to be minimal. You know, you'd hear
Speaker 1: a case here and there in North Carolina. Whatever are
Speaker 1: the risks greater? Today? I think that the amount of
Speaker 1: election fraud, whether committed by voters or by others, is
Speaker 1: quite low. Ah, there are isolated instances. We see it
Speaker 1: in every election. A ballot here, a ballot there. This
Speaker 1: was the most watched and investigated election I think in
Speaker 1: American history, and it turned up very few cases of fraud.
Speaker 1: You know. The idea is that the fraud is going
Speaker 1: to be so massive that it's going to swing elections,
Speaker 1: but so well done that it can't be detected. And
Speaker 1: it's just not realistic. And you know, when we see
Speaker 1: fraud in elections, it tends to be in small elections
Speaker 1: where moving a few votes could make a difference. I
Speaker 1: certainly think we need to continue to be on guard
Speaker 1: against these kinds of attempts to manipulate election outcomes. But
Speaker 1: many of the laws that are being passed the name
Speaker 1: of preventing voter fraud are really more about pleasing the
Speaker 1: Republican base who has been told that our elections are
Speaker 1: right with fraud, and that evinces a kind of response
Speaker 1: from these election officials. When I think about the next
Speaker 1: presidential election, I just wonder what's going to happen. Is
Speaker 1: it going to be like elections before or they're going
Speaker 1: to be outrageous claims, all kinds of problems that elections
Speaker 1: sites and in counting votes. What has to be done
Speaker 1: now to make it as normal as possible to avoid
Speaker 1: some of these problems. Well, in cheap speech, I argue
Speaker 1: that there are some legal steps we could take to
Speaker 1: improve the information atmosphere for our elections. That that's only
Speaker 1: one piece of what we need for um pre and
Speaker 1: fair elections, elections that people who accept this legitimate the
Speaker 1: next time. In a piece that just posted at the
Speaker 1: Harvard Law Review Forum, I advocate a number of steps
Speaker 1: to avoid election subversion future elections. That's where the election
Speaker 1: loser might try and get declared the election winner, as
Speaker 1: we saw Trump try to do in when he tried
Speaker 1: to manipulate the electoral college process to turn his defeat
Speaker 1: into a victory. I mean, there are a number of
Speaker 1: things that we could do legally unrelated to speech. For example,
Speaker 1: Congress could pass a law that would require every state
Speaker 1: to use voting machines that produce a piece of paper
Speaker 1: ballots that could be recounted by hand in the event
Speaker 1: that there is a problem with how an election is run. Um.
Speaker 1: You may remember Donald Trump claimed that the Georgia election
Speaker 1: was fraudulent and they did a full hand recount of
Speaker 1: every ballot of the state. You can't do that with
Speaker 1: fully electronic machines. So there are a number of things
Speaker 1: that could be done in terms of ballot transparency, voting
Speaker 1: rules being transparent, also fixing the electoral college rules the
Speaker 1: Congress applies. There's some talk of a bipartisan compromise there,
Speaker 1: but I think beyond that it's going to have to
Speaker 1: be not just legal change, but social and political organizing
Speaker 1: to find those people in the center who might disagree
Speaker 1: about all kinds of things politically, but agree that we
Speaker 1: should have a free and fair election where the results
Speaker 1: are not dictated by whoever is counting the votes, but
Speaker 1: instead reflectible of the people. I want to talk for
Speaker 1: a moment about Elon Musk taking over Twitter. He is
Speaker 1: a free speech absolutist. He said that there should be
Speaker 1: minimal interference. If it's a gray area, let the speech exist.
Speaker 1: How do you think he's taking over Twitter will change things? Well,
Speaker 1: first of all, he might say he's a free speech absolutist,
Speaker 1: but if he wants to run a platform that's actually
Speaker 1: going to make money, I don't think he's going to
Speaker 1: let everything on the platform that the First Amendment would allow.
Speaker 1: So you know, if there were no moderation of content,
Speaker 1: for example, our feeds on Twitter would be filled with
Speaker 1: hate speech, would be filled with pornography, would be filled
Speaker 1: with a lot of advertising for male enhancement pills. I mean,
Speaker 1: it would just be the kind of place that nobody
Speaker 1: would want to go. And so, uh, I think what
Speaker 1: he means is that Donald Trump and some of the
Speaker 1: other conservatives who are removed from the platform should be restored.
Speaker 1: I think that's very problematic. I think it's a private company,
Speaker 1: Twitter can make that decision, but I think that voters
Speaker 1: and consumers can also object to that, and the employees
Speaker 1: of the company can object By leaving. You know, the
Speaker 1: tech world is a very competitive world in terms of
Speaker 1: hiring employees, and if people at these companies object, you're
Speaker 1: going to lose some of the brain talent. And so, uh,
Speaker 1: you know, we'll see what decisions Elon Musk ends up making.
Speaker 1: I don't know that it's going to make things better.
Speaker 1: I don't know that he's in it for the profit
Speaker 1: as opposed to as a kind of vanity project. But
Speaker 1: we'll see how things go. I'm not at all even
Speaker 1: certain he'll end up owning the platform, given how things
Speaker 1: have been going. What are your final thoughts? So, I
Speaker 1: think American democracy is at a very challenging period. We
Speaker 1: have this highly polarized environment in which false claims about
Speaker 1: elections are easily spread, and I think the question we
Speaker 1: really need to ask is how can we assure that
Speaker 1: we can have both free and fair elections as well
Speaker 1: as a system where people can vigorously compete with each other,
Speaker 1: but where election lies don't take a for in terms
Speaker 1: of voters thinking about how to make decisions about Thanks
Speaker 1: so much, Rick. That's Professor Richard Hassan of the University
Speaker 1: of California, Irvine, the author of Cheap Speech, How disinformation
Speaker 1: poisons our politics, and how to cure it. This week,
Speaker 1: the unprecedented leak of a draft opinion overturning Roe v.
Speaker 1: Wade used up all the oxygen around the Supreme Court.
Speaker 1: Little noticed was an opinion in which the justices were
Speaker 1: unanimous in deciding that Boston violated the Constitution by refusing
Speaker 1: to fly a Christian Civic Groups flag at City Hall
Speaker 1: while raising the banners of some fifty other organizations. The
Speaker 1: Justice has rejected the city's contention that its flag raising
Speaker 1: program was a form of government speech that wasn't subject
Speaker 1: to the First Amendment, something that Justice Elena Kagan was
Speaker 1: unequivocal about during the oral arguments. A program that basically
Speaker 1: now says and and and previously, we welcome all commerce
Speaker 1: except for the most reprehensible, discriminatory speech and religious speech.
Speaker 1: That's what this program is. And why should we understand
Speaker 1: that to be government speech? To say everything's good except religion?
Speaker 1: Joining me is First Amendment? Law expert Timothy Zick, a
Speaker 1: professor at William and Mary Law School. Justice Brian wrote
Speaker 1: the majority opinion and said the central question was whether
Speaker 1: the city had created a public forum for private speech.
Speaker 1: Can you explain that for us. Sure. So when the
Speaker 1: government opened up a public space the Applausa or something
Speaker 1: like that for private speakers to come in a sort
Speaker 1: of diversity of views, to let them communicate in that space,
Speaker 1: then it's opened up essentially a forum for private speakers.
Speaker 1: And that's distinguished from the government using a space or
Speaker 1: a property to communicate its own messages. And that's the
Speaker 1: full dividing line in this case. If the government was
Speaker 1: using the flagpole to send out its own messages, then
Speaker 1: it would be government speech and it would be immune
Speaker 1: from First Amendment concerns. Exactly when the government speak, it
Speaker 1: gets to decide what it wants to say, what viewpoint
Speaker 1: it wants to express, what message it wants to communicate,
Speaker 1: which is quite different from you know, when the government
Speaker 1: regulates private speakers, it has to sort of obey the
Speaker 1: opposite rule, which is to say, it cannot discriminate based
Speaker 1: on what a private speaker wants to say, what viewpoints
Speaker 1: they want to commun Brier set out a three factor
Speaker 1: test for deciding whether a message is government speech. Was
Speaker 1: that a test you've seen before? Yeah, those are factors
Speaker 1: that the court has relied on in previous cases. So
Speaker 1: there have been several government speech cases before this one,
Speaker 1: involving things like monuments that are placed in a public
Speaker 1: park or specialty license place, so the state allows citizens
Speaker 1: to display on their automobiles, or trademarks in the case
Speaker 1: of federal trademark law. And so what the court was
Speaker 1: doing here is sort of pulling factors from those precedents
Speaker 1: and applying them to, in this case, Boston's flagpole policy.
Speaker 1: So the factors that are relevant here are the history
Speaker 1: of the expression at issue. Have flagpoles and flags been
Speaker 1: used historically, you might say, by governments to speak, what's
Speaker 1: the public likely perception as to who's doing the speaking,
Speaker 1: who's the statement going to be attributed to, And then
Speaker 1: the extent to which the government has actively shaped or
Speaker 1: controls the expression. And I think it's fair to say,
Speaker 1: reading Justice Prior's opinion, that the last element there seemed
Speaker 1: to be the most prominent one. Indeed, he seemed to
Speaker 1: suggest that Boston had a good case with respect of
Speaker 1: the first two elements. But since it hadn't really exercised
Speaker 1: any control as to what flags went on this third
Speaker 1: flagpole until this case, until the Christian flag was presented
Speaker 1: to it, that was the problem. What I'm curious about
Speaker 1: is this was a unanimous decision, yet the district court
Speaker 1: and the appellate court sided with the city. How did
Speaker 1: they both get it so wrong? Yeah, I think again,
Speaker 1: if you look at the courts factors, which is what
Speaker 1: the lower courts are looking at too, there's the sort
Speaker 1: of history of flags used over time. Governments, you know,
Speaker 1: typically traditionally have communicated messages and sentiments through flags. There's
Speaker 1: no question about that. And on a place like the
Speaker 1: Plaza which sits right next to city Hall, and the
Speaker 1: third flagpole that flies of flags next to the United
Speaker 1: States flags and the state flag of Massachusetts, one might
Speaker 1: attribute whatever goes on that third flag to the government.
Speaker 1: You know, two of the three factors then again seemed
Speaker 1: to point in the city's favor. And you know, the
Speaker 1: Supreme Court, as I say, seemed to focus more heavily
Speaker 1: on the fact that there seemed to be no selectivity
Speaker 1: or control that if you're really trying to communicate something,
Speaker 1: one would expect that you'd want to have some say
Speaker 1: so in terms of which flags go on this third flagpole.
Speaker 1: And you know, in the fifty instances and hundreds of
Speaker 1: commemorative ceremonies that have starred. Up to this point, Boston
Speaker 1: hadn't exercise any that kind of editorial control. Has the
Speaker 1: Supreme Court struggled to distinguish government speech from private speech
Speaker 1: in the past. I think it struggles mightily. There's a
Speaker 1: really basic principle here that government couldn't operate if it
Speaker 1: couldn't communicate its own points of view, positions, messages, et cetera.
Speaker 1: But determining what is and what isn't government speech when
Speaker 1: in fact the government is speaking, as opposed to regulating
Speaker 1: private speech, turns out to be a very difficult endeavor.
Speaker 1: And I think that's what you see in a case
Speaker 1: like this one. And you know, in Justice the Leado's concurrence,
Speaker 1: he tries to provide a more focused test in terms
Speaker 1: of determining when is it that the government is actually speaking,
Speaker 1: Has it developed a method, has it sort of communicated
Speaker 1: that message consistently as a deputized private parties maybe to
Speaker 1: communicate it. So there is an effort here in the
Speaker 1: concurrence to try and narrow down the issue something other
Speaker 1: than these three sort of amorphous factors. But it's just
Speaker 1: a concurrence, and the majority just applies these factors. So
Speaker 1: it's been each case on its own terms and its
Speaker 1: own facts, which naturally leads to what some might do
Speaker 1: as inconsistent results. You mentioned Justice Alito's concurrence, and he
Speaker 1: seemed to be trying to relitigate the Texas case involving
Speaker 1: the Confederate flag on license plates. Tell us more about
Speaker 1: that case and why he has a problem with it. Yeah,
Speaker 1: I think Justice Alito, you know, looking at the text,
Speaker 1: especially license plate programs, just just found it incredible that
Speaker 1: the public would attribute to the State of Texas the
Speaker 1: sort of multitude of especialty license plate that the state
Speaker 1: had allowed. And they ranged from you know, sports teams
Speaker 1: outside of Texas being displayed on these license plate to
Speaker 1: let's all go play golf, you know, just get the
Speaker 1: multitude of messages. So it just seemed to him incredible
Speaker 1: on the attribution part of it, at least, that the
Speaker 1: public would associate any for a lot of those messages
Speaker 1: with the state. So I think he was dubious there,
Speaker 1: And you know, he is, as you say, trying to
Speaker 1: relitigate the Texas license plate case, casted as an outlier
Speaker 1: in terms of the scope of government speech, because if
Speaker 1: that government speech, then he can imagine you know, lots
Speaker 1: of other things government does also being characterized that way.
Speaker 1: And the danger here is the government, under the guise
Speaker 1: of discriminating against private speech and private speakers, will cast
Speaker 1: itself in lots of cases as the speaker to try
Speaker 1: and avoid the First Amendment content neutrality requirement. So he's
Speaker 1: pushing back, you know, very hard against not just that case,
Speaker 1: but I think the doctrine of government speech and trying
Speaker 1: to cabinet in some way narrow it to its essence.
Speaker 1: In another concurrence, Justice Courser seemed to have a problem
Speaker 1: with the Lemon case. I think both he and Justice Kavanaugh,
Speaker 1: who wrote his own concurrence, are concerned at what animated
Speaker 1: this controversy, What made this a controversy in the first place,
Speaker 1: was a sort of misunderstanding about the place of religious
Speaker 1: speech in the public square and in public life more generally.
Speaker 1: So it seems to them that Boston's officials recoiled from
Speaker 1: the idea of having any kind of Christian flag or
Speaker 1: religious flag put into the mix, even though they allowed
Speaker 1: like credit unions to fly a flag, and lots of
Speaker 1: different nationalities and so forth. And Justice Courses in particular
Speaker 1: is tracing that back to sort of an establishment clause
Speaker 1: problem as he sees it, with what's become a very
Speaker 1: unpopular case Lemon, which steps forth a test for when
Speaker 1: the establishment claus is violated. And so there is an
Speaker 1: effort there to sort of go beyond the speech context
Speaker 1: and the government speech principle and shed some light on
Speaker 1: what they think is a related problem. So, in essence,
Speaker 1: their position, as in the courts position has been, when
Speaker 1: you open a forum like the flagpole, you can't discriminate
Speaker 1: against religious speakers for religious viewpoints. The establishment claus doesn't protect.
Speaker 1: That kind of activity is actually sort of contrary to
Speaker 1: religious freedom to single out religious speakers for special treatment.
Speaker 1: And that's the fight that I think this discourses just
Speaker 1: pointing to in his concurrence. Does he seem to be
Speaker 1: on a sort of mission. It seems to echo a
Speaker 1: little bit of the oral arguments in the case of
Speaker 1: the football coach who wants to prey on the fifty
Speaker 1: yard line. Yeah. I think religious freedom in general has
Speaker 1: been a very sort of front and center part of
Speaker 1: the Supreme Court supermajority agenda. So they've taken lots of
Speaker 1: free exercise cases and religious freedom cases, and I think
Speaker 1: there is an effort here to move some of the brush,
Speaker 1: if you will, out and Lemon is one of those
Speaker 1: precedents that's been problematic and criticized for a long time.
Speaker 1: And so yeah, I think there are echoes of the
Speaker 1: football coach prayer case. You mentioned several others that have
Speaker 1: been decided recently, the Masterpiece Cake Shop case, for example,
Speaker 1: public funding for parochial schools, all of them based on
Speaker 1: this sort of neutrality principle that you cannot under the
Speaker 1: religion clauses single out religious viewpoints for burdens or different
Speaker 1: rules and you'd apply to other persons or speakers. Nothing
Speaker 1: prevents Boston from changing its policies going forward, and the
Speaker 1: city has said that in the event of a loss
Speaker 1: at the court, it will probably change its policy. What
Speaker 1: would a policy change entail that would make this government speech?
Speaker 1: I think they have to make it clearer or clear.
Speaker 1: I guess one would say that this is not a
Speaker 1: forum for just any comers. Anyone who wants to display
Speaker 1: a flag, they've got to exercise the kind of control
Speaker 1: that the court says is missing, the editorial control in
Speaker 1: their policy. And the court actually points to different flag
Speaker 1: flying policies from other jurisdictions like San Jose where they
Speaker 1: make clear that flagpoles are not intended to serve as
Speaker 1: a forum for free expression by the public, and then
Speaker 1: they lift approved flags that can be flown as an
Speaker 1: expression of the city's official sentiment. And that's not what
Speaker 1: the city of Boston was doing, was opening up this
Speaker 1: space and inviting speakers of all kinds to come in
Speaker 1: and then shutting the door because just this one particular speaker.
Speaker 1: I mean, the easiest thing for Boston to do is
Speaker 1: simply to fly its own city flag on that third
Speaker 1: flagpole and be done with it. But if they do
Speaker 1: want to open that flag up two different flags of
Speaker 1: you know, non city entities, they're going to have to
Speaker 1: be much more selective and much clearer about what it
Speaker 1: is they're trying to communicate to the public. Finally, do
Speaker 1: you think that this opinion will help courts in the
Speaker 1: future to be able to distinguish between government speech and
Speaker 1: private speech. Not very much, unfortunately. And then, as someone
Speaker 1: who teaches this subject, you know, as an interest in
Speaker 1: getting some clarity in terms of, you know, what the
Speaker 1: rules are, the standards are in this area. So on
Speaker 1: the one hand, you know, this is a very outlier
Speaker 1: case in the sense that the governmental entity here Boston
Speaker 1: doesn't seem to have exercised really any selectivity and control.
Speaker 1: In most cases you'll find some selectivity, some editorial control
Speaker 1: by the governmental entity. It may be that the attribution
Speaker 1: piece of this is a little unclear, or the historical
Speaker 1: use of this kind of you know, forum for speech
Speaker 1: is less clear. But I think all this court has
Speaker 1: done is simply repeat the factors from cases like Walker,
Speaker 1: the license plate case, and some of them the public
Speaker 1: park case, and courts are going to have to take
Speaker 1: these up one by one, and I think that's part
Speaker 1: of what Justice Pelito is reacting to. We need to
Speaker 1: give more clarity in terms of a test the lower
Speaker 1: court and litigin otherwise we're just going to keep seeing
Speaker 1: these cases each on their own facts. Thanks so much.
Speaker 1: That's Professor Timothy Zick of William and Mary Law School,
Speaker 1: And that's it for this edition of the Bloomberg Law Show.
Speaker 1: Remember you can always get the latest legal news on
Speaker 1: our Bloomberg Law podcast. You can find them wherever you
Speaker 1: get your favorite podcasts. I'm John Grosso, and you're listening
Speaker 1: to Bloomberg