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

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Speaker 2: Welcome to the Bloomberg Law Show. I'm June Grosso. Ahead

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Speaker 2: in this hour, the Supreme Court agrees to decide whether

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Speaker 2: Donald Trump can be kicked off the Colorado ballot In

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Speaker 2: a landmark case. The Special Council asks the judge to

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Speaker 2: reign in Trump at trial, and Trump wants him cited

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Speaker 2: for contempt, increasing lawsuits against universities over anti Semitism, and

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Speaker 2: Mickey Mouse enters a new magical kingdom called the public domain.

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Speaker 2: The Supreme Court is plunging into the twenty twenty four

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Speaker 2: election and the national debate over Donald Trump's candidacy. The

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Speaker 2: justices have agreed to decide a landmark constitutional clash over

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Speaker 2: efforts to remove Trump from this year's presidential ballot for

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Speaker 2: trying to overturn the twenty twenty election.

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Speaker 3: There was an outrageous attempt at disenfranchising minions and millions

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Speaker 3: of voters by getting us thrown off the ballot.

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Speaker 2: The Court will consider whether Colorado can bar Trump from

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Speaker 2: the presidential ballot under the provision of the Constitution that

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Speaker 2: ban's insurrection is from holding public office. The Justice is

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Speaker 2: we'll hear the case on an expedited basis with arguments

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Speaker 2: on February eighth. Joining me is elections law expert Richard Brefalt,

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Speaker 2: a professor at Columbia Law School. What's your reaction to

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Speaker 2: the Supreme Court deciding to take this case and deciding quickly.

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Speaker 4: It's not a surprise. It's a very important issue. It

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Speaker 4: has national ramification. There's so far been at least two states,

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Speaker 4: where is it Colorado? And then the main secretary of

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Speaker 4: state who've gone one way wanted to take them off

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Speaker 4: the ballots or of other states have rejected that, and

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Speaker 4: I think the way they've set it up, they're going

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Speaker 4: to do it quickly. They've said oral argument of February eighth,

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Speaker 4: which means they can get a decision down in time

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Speaker 4: before the ballots finalized in those states. I think February

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Speaker 4: twelve might be dates for this call out of ballot.

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Speaker 4: I'm not sure, but they have a chance this way

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Speaker 4: of being done fast, and they've given the party to

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Speaker 4: throw the short schedule as they're planning to have oral

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Speaker 4: argument in basically a month.

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Speaker 2: Isn't that a very short timeline for the parties to

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Speaker 2: get the briefs together and to prepare for the oral arguments.

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Speaker 4: It's tight, but I think it's driven by the election schedule,

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Speaker 4: by the election calendar. I think they want to get

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Speaker 4: this wrap up and done before ballotstit final in a

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Speaker 4: lot of state.

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Speaker 2: Many legal experts are saying, on an issue like this,

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Speaker 2: with so many political and legal ramifications, the Chief Justice

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Speaker 2: is likely to seek a consensus, possibly with a narrow ruling.

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Speaker 2: Do you agree with that?

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Speaker 4: It's hard to say. I mean, it may very well

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Speaker 4: be that he's not going to have any difficulty with that.

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Speaker 4: I mean, it would certainly be ideal for this question

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Speaker 4: for the Court to speak with as close to one

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Speaker 4: voice as possible. I think they're going to move very quickly,

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Speaker 4: so I don't know that there'll be a lot of

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Speaker 4: time for bargaining. But I think this is one where

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Speaker 4: I everybody on the court is doomly things with the

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Speaker 4: ideal for this question for the Court to speak with

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Speaker 4: as close to one voice as they.

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Speaker 2: Can as they can. But won't that be difficult with

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Speaker 2: this particular court.

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Speaker 4: It's hard to say. I mean, this is such, this

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Speaker 4: is a truly unprecedented issue, so you know there's no

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Speaker 4: real backdrop of this. I mean yes, you know it

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Speaker 4: has a political aspect to it, but it's not one

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Speaker 4: where there's like any kind of precedent that there's any

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Speaker 4: sense that the judges are bringing particular ideological perspectives to

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Speaker 4: how this should be resolved.

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Speaker 2: On Thursday, a group of House Democrats sent Justice Clarence

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Speaker 2: Thomas a letter demanding that he recuse himself from this case,

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Speaker 2: citing his wife's involvement in January sixth. Do you think

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Speaker 2: that Thomas will heed this call to recuse himself.

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Speaker 4: I think it's unlikely. The argument for his refusal is,

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Speaker 4: of course, based on his wife's active involvement in some

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Speaker 4: of the activity that led up to January sixth. It

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Speaker 4: might make sense to accuse himself. But he doesn't seem

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Speaker 4: to be very bothered by any of the challenges raised

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Speaker 4: about him, any of the complaints raised about him. I

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Speaker 4: think he's pretty nonchalance of all that stuff.

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Speaker 2: I agree with you completely on that. Let's turn out

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Speaker 2: to some of the issues that the court will be facing.

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Speaker 2: Transpetition attacking the Colorado ruling does so on several grounds.

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Speaker 2: Is there one that you find particularly compelling?

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Speaker 4: Honestly, I think he is really going out in all directions,

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Speaker 4: some of which are purely procedural and maybe kick the

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Speaker 4: can down the road, which is, you know, the amendment

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Speaker 4: only for him as somebody from holding office. It doesn't

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Speaker 4: affect who can be on the ballot. He's got some

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Speaker 4: arguments that it's something that state courts can't handle, that

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Speaker 4: it's outside state court jurisdiction. So he has some arguments

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Speaker 4: that are designed to kind of skirt the merits, which

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Speaker 4: might mean that they come back later. He's got some

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Speaker 4: arguments that are hyper technical. I think one about so

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Speaker 4: whether or not the president as an officer of the

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Speaker 4: United States within the media of the Constitution. It sounds

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Speaker 4: like a really odd argument, of course a president as

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Speaker 4: an officer of the United States. But Trump's lawyers do

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Speaker 4: have a plausible technical argument based on the language of

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Speaker 4: the Constitution that maybe the president isn't picked up by

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Speaker 4: that language. And then there's the ones that really go

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Speaker 4: to what we might consider the heart of the fight,

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Speaker 4: which is was January sixth in insurrection and was Trump

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Speaker 4: engaged in it? And so we don't know. I mean,

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Speaker 4: I think they're early finding on all fronts. Procedural ones

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Speaker 4: that argue that the Colorado Court sort of screwed up

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Speaker 4: Colorado election, long Colorado election procedure, technical ones about the

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Speaker 4: meeting of officers of the United States, and maybe ones

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Speaker 4: about what was January sixth in insurrection and did he

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Speaker 4: engage in it? Their brief covers just about everything.

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Speaker 2: One non technical ground is their argument that quote the

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Speaker 2: Colorado Supreme Court decision would unconstitutionally disenfranchise millions of voters

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Speaker 2: in Colorado and likely be used as a template to

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Speaker 2: disenfranchise tens of millions of voters nationwide, and even his

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Speaker 2: opponents in the Republican presidential primary seem to say, the

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Speaker 2: voters decide this.

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Speaker 4: Yeah, I mean that's a real tension between you know,

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Speaker 4: the notion of democracy as the voters getting decided, the

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Speaker 4: notion that we're democracy governed by the rule of law.

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Speaker 4: I mean, let's say he wasn't a citizen. I mean,

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Speaker 4: if he's not a citizen, he's not eligible. And it's

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Speaker 4: not clear to me that voters have a protected right

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Speaker 4: to vote for an ineligible person, let's say, a non citizen,

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Speaker 4: where somebody's only thirty years old and not thirty five.

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Speaker 4: So I think their argument that this is depriving the

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Speaker 4: voters of the right to choose is implicitly saying they

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Speaker 4: think he's eligible, that they think that fourteen three doesn't

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Speaker 4: bar him. I mean, if the Constitution means anything, all

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Speaker 4: of our rights provisions of the Constitution are designed to

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Speaker 4: put some constraints on what voters can do or what

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Speaker 4: elected legislatures can do. In the First Amendment the Second

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Speaker 4: Amendment are all constraints on what voters can accomplish. So,

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Speaker 4: I mean, I think as a political argument, it's a

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Speaker 4: strong one. It has a lot of residence in our

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Speaker 4: system where we do believe that the voter should side things.

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Speaker 4: But it is in tension with the idea that we're

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Speaker 4: not just a democracy or a constitutional democracy, and there

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Speaker 4: are some rules rich.

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Speaker 2: Ignoring the legal arguments for a minute, does this court

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Speaker 2: want to be the first to keep a candidate a

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Speaker 2: former president off the ballot and pave the way for

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Speaker 2: a year of constitutional turbulence? It would be echoes of

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Speaker 2: Bush v. Gore. But for a court that's been mired

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Speaker 2: in ethics controversies and polarizing decisions. So are they perhaps

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Speaker 2: going to look for a technical way to decide this.

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Speaker 4: Well, I think at some point they're going to have

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Speaker 4: to decide something and there are ways of deciding this.

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Speaker 4: I mean, that's the nice thing about the Trump brief

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Speaker 4: is they'd given them many ways to decide this that

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Speaker 4: don't involve deciding whether or not January sixth was an insurrection.

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Speaker 4: And some of these include. The argument that I don't

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Speaker 4: find persuasive that some people do is that fourteen three

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Speaker 4: is what's called non self executing. That in other words,

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Speaker 4: it requires congressional legislation to implement it, and Congress Coby

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Speaker 4: hasn't passed anything. I don't think that's a very strong

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Speaker 4: argument that it's something that a people can use. I

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Speaker 4: do think the one about officer in the United States

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Speaker 4: is a technical way out, though it would be a

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Speaker 4: big decision to say the president is not an officer.

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Speaker 4: I think there could be arguments about the flawed process

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Speaker 4: that the Colorado's court system used, although that would leave

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Speaker 4: this open to possibly another state which was a better

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Speaker 4: process doing it. So I do think they have a

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Speaker 4: lot of options I agree with I think it would

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Speaker 4: be a very bold thing for the court to conclude

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Speaker 4: that he's ineligible. You never know, I mean, and I

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Speaker 4: do think there are many ways in which the court

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Speaker 4: could find ineligible without passing on whether what happened on

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Speaker 4: January sixth was an insurrection.

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Speaker 2: The Colorado Court's ruling specifically addressed the Republican primary in

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Speaker 2: the state. So, right, would a Supreme Court decision apply

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Speaker 2: just to the primary or is it up to them

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Speaker 2: to decide how broad it is?

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Speaker 4: Exactly will depends on the language. I mean, I think

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Speaker 4: the argument is, and this is one of the arguments

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Speaker 4: that Trump raises, is that the fourteen three actually doesn't

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Speaker 4: address elections at all. It addresses eligibility to serve, and

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Speaker 4: therefore it might be enforceable only by Congress. I mean,

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Speaker 4: that's one of their arguments, is that it doesn't say

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Speaker 4: who can run for office, it just says who can serve.

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Speaker 4: And so maybe the argument is the Colorado Supreme Court

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Speaker 4: had no role in deciding who gets to be on

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Speaker 4: the ballot other than, you know, if they've followed the

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Speaker 4: process for getting on the ballot, and that the ultimate

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Speaker 4: decision would be up to Congress. And that's one possibility.

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Speaker 2: So the court has this case. Also, the question of

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Speaker 2: presidential immunity is bound to come up to the court again, right,

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Speaker 2: And they've also decided that they're going to examine the

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Speaker 2: validity of a law used to charge people, including Trump,

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Speaker 2: in connection with twenty twenty I mean, it seems like

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Speaker 2: this court is going to to be part of this

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Speaker 2: presidential election in a way. I'm sure that most of

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Speaker 2: the justices, certainly the Chief Justice, wouldn't want, but they're

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Speaker 2: sort of forced into it.

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Speaker 4: Yeah, I mean, some of these things they've chosen, Like

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Speaker 4: they're the ones who agree to hear the case challenging

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Speaker 4: the use of the ticular federal statute about corruptly disrupting proceedings,

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Speaker 4: whether or not that applied to what happened on January sixth.

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Speaker 4: That one was a choice, but most of the others

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Speaker 4: they don't have much choice. That's true. I mean, I think,

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Speaker 4: you know, the issues that's around Trump are unprecedented, but

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Speaker 4: he is acted in ways that are unprecedented for a president.

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Speaker 4: So it's not surprising that these amazing new cases that's

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Speaker 4: coming up, the things that he has done or said

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Speaker 4: to have done, really are unique in in American history.

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Speaker 2: It looks like twenty twenty four is going to be

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Speaker 2: quite a year for elections law. Thanks so much, rich

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Speaker 2: that's Professor Richard Brafault of Columbia Law School coming up

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Speaker 2: next andnotherly front for Donald Trump the criminal case for

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Speaker 2: election interference. I'm June Gross when you're listening to Bloomberg.

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Speaker 5: They want to silence me, because I will never let

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Speaker 5: them silence you.

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Speaker 3: And in the end, they're not after me, They're after you.

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Speaker 2: I just happen to be standing in their way, and

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Speaker 2: I always will say it in their way. Donald Trump's

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Speaker 2: presidential campaign seems to be driven by grievance over the

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Speaker 2: four criminal cases he's facing. It's a campaign narrative where

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Speaker 2: Trump is the victim of an unfair justice system, the

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Speaker 2: target of a witch hunt, and he often vilifies the

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Speaker 2: prosecutors bringing those cases, especially Special Counsel Jack Smith.

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Speaker 6: And did you see today that deranged Jack Smith.

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Speaker 7: He's the prosecutor, He's a deranged person, wants to take

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Speaker 7: away my rights.

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Speaker 2: And Jack Smith is attempting to stop Trump from bringing

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Speaker 2: his politics and misinformation into the courtroom during his criminal

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Speaker 2: trial for election interference. He's filed a asking trial Judge

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Speaker 2: Tanya Chuckin to limit the defense's Trump can raise a trial.

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Speaker 2: Joining me is former federal prosecutor Robert Mintz, a partner

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Speaker 2: maccarter in English. So special Council Jack Smith filed the

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Speaker 2: motion last Wednesday to prevent Trump and his defense lawyers

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Speaker 2: from turning quote, the courtroom into a forum in which

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Speaker 2: he propagates irrelevant disinformation. Is this basically emotion designed to

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Speaker 2: stop the expected circus that comes with Trump. I mean,

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Speaker 2: we saw it in the New York civil case by

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Speaker 2: the Attorney General.

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Speaker 3: Sure, these are critical motions that were filed by the

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Speaker 3: special counsel in order to limit the scope of where

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Speaker 3: the defense can actually go during this trial. So what

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Speaker 3: mister Smith did was the file with the judge e

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Speaker 3: motion barring ten different forms of evidence that he anticipates

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Speaker 3: that the Trump defense may raise a trial. These are

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Speaker 3: what's called pre trial evidentiary rulings or in limity motions,

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Speaker 3: where a judge is asked before a trial to make

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Speaker 3: a ruling as to what evidence can be permitted and

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Speaker 3: what evidence has to be excluded from the trial. And

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Speaker 3: they could be filed by both sides. The defense can

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Speaker 3: file it in the limity motion, so can the prosecution.

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Speaker 3: But what we're seeing here is an attempt by the

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Speaker 3: prosecutor to rein in what could be a very far

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Speaker 3: flung defense, and in the eyes of prosecutors, an attempt

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Speaker 3: to distract the jury and to politicize this case on

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Speaker 3: a whole series of issues that do not go directly

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Speaker 3: to the evidence that will ultimately convict or ecquit former

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Speaker 3: President Trump at trial.

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Speaker 2: So this kind of motion called emotion and leimonae, as

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Speaker 2: you mentioned, is common, isn't it.

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Speaker 3: It's quite common. It's filed in many criminal cases. And again,

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Speaker 3: what you try to a voice here is a issue

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Speaker 3: coming up in the middle of the trial. You've got

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Speaker 3: jurors and paneled, they're sitting there, they've been hearing a

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Speaker 3: case for a while. The judge doesn't want and what

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Speaker 3: the prosecution doesn't want is to go into a big

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Speaker 3: argument about some issue as to what can be admitted

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Speaker 3: to trial, what can't be admitted in trial. And in

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Speaker 3: order to give both sides a fair opportunity to prepare

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Speaker 3: adequately for the trial, prosecutors will often ask a judge

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Speaker 3: before a trial begins to limit in some way the

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Speaker 3: evidence that the defense is allowed to present to the

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Speaker 3: jury during the trial.

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Speaker 2: Trump has repeatedly said this is a vindictive prosecution directed

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Speaker 2: by Joe Biden and constitutes election interference. Smith wants to

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Speaker 2: prevent him from raising selective prosecution during the trial. What

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Speaker 2: are the standards the judge will use, I mean, is

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Speaker 2: it relevance, prejudicial, what kind of standards?

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Speaker 3: Well, that's a great question. I think the two themes

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Speaker 3: that we are going to see the defense try to

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Speaker 3: go after here are selective prosecution, as you say, and

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Speaker 3: also the concept of election interference. The selective prosecution argument

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Speaker 3: is basically trying to argue that similarly situated defendants have

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Speaker 3: been treated differently by prosecutors, and that the defendant in

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Speaker 3: this case is being singled out for some improper motives.

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Speaker 3: So to give a very simple example of selective prosecution,

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Speaker 3: if you're driving down the New Jersey Turnpike and there's

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Speaker 3: ten people feeding and they pull only you over and

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Speaker 3: the other nine people are not pulled over, even though

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Speaker 3: everybody is perhaps feeding, and you're the only one who

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Speaker 3: gets a ticket, you can't really raise selective prosecution there

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Speaker 3: to say that it's unfair that you were ticketed and

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Speaker 3: they were not. You have to go beyond that and

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Speaker 3: to show that you were singled out for some kind

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Speaker 3: of improper motive. So in this case, to raise selective

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Speaker 3: prosecution is going to be extremely difficult, just because there's

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Speaker 3: really nothing to compare this case too. It's so unique,

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Speaker 3: it's so unprecedented that to say that former President Trump

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Speaker 3: is being singled out here when other similarly situated defendants

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Speaker 3: may have been treated differently, is unlikely to be successful.

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Speaker 2: There's a lot of defense arguments the Special Council is

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Speaker 2: trying to prevent, including blaming the violence on January sixth

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Speaker 2: on poor law enforcement, or provocation by undercover agents, or

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Speaker 2: foreign interference. And this just brings to mind cases where

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Speaker 2: it seems like defense attorneys throw everything at the wall

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Speaker 2: and hope that something will stick, and is a Special

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Speaker 2: Counsel trying to prevent Trump from doing that?

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Speaker 3: Yeah, that's exactly what's going on, and that is the

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Speaker 3: tension between the prosecutor and the defense. When you're the prosecutor,

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Speaker 3: you want this case to go in very focused, very streamlined.

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Speaker 3: You want everything during the case to be focused directly

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Speaker 3: on the evidence and whether or not you've met your

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Speaker 3: burden of proof. When you're on the defense side, it's

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Speaker 3: a completely different role that you're playing. You're trying to

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Speaker 3: raise every issue under the sun. You're trying to bring

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Speaker 3: in all kinds of extraneous and perhaps irrelevant information because

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Speaker 3: at the end of the day, if even one juror

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Speaker 3: is confused by the evidence unable to vote to convict,

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Speaker 3: then you have a victory. There a hung jury, even

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Speaker 3: one juror not voting for conviction, means that the prosecution

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Speaker 3: has to retry the case all over again. So the

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Speaker 3: defense is going to try to raise a number of

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Speaker 3: issues which they claim are relevant, and here the foreign

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Speaker 3: interference defense is something that they're going to pursue, I

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Speaker 3: think quite vigorously, and that defense is basically asking for

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Speaker 3: the government to give them access the more government documents,

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Speaker 3: including classified information from former President Trump's administration, that he

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Speaker 3: believes will back up his arguments that the election result

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Speaker 3: couldn't be trusted, in other words, that there were outside

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Speaker 3: on foreign influences that were providing disinformation about the campaign.

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Speaker 3: All of this is trying to support the Trump defense

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Speaker 3: that his belief that the election was not there and

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Speaker 3: was not accurate was something that he believed in good faith,

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Speaker 3: and by raising proof of foreign interference, it's supports the

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Speaker 3: argument that his belief that the election was not properly

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Speaker 3: managed was not a fair result was at least a

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Speaker 3: good faith belief, if not in fact true.

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Speaker 2: The Special Council file this motion even though the case

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Speaker 2: has been put on hold during the appeal of Trump's

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Speaker 2: claim of presidential immunity, and Trump has made I want

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Speaker 2: to call it a silly motion to have Smith held

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Speaker 2: in contempt just for filing this motion. What's really going

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Speaker 2: on here.

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Speaker 3: So at this point the judge can receive motions and

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Speaker 3: at least review them and think about them while they

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Speaker 3: are in this period where they're waiting for the Court

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Speaker 3: of Appeals to rule. So while she can't issue any decisions,

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Speaker 3: she can look at those issues. And what the prosecution

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Speaker 3: is trying to do here is see these things up

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Speaker 3: so that when the Court of Appeals rules and the

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Speaker 3: prosecution expects that the immunity defense will be rejected, the

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Speaker 3: judge will quickly move to these various alumni motions and

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Speaker 3: be able to rule on them quickly. Another thing what's

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Speaker 3: going on here is that we're seeing here a real

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Speaker 3: battle between the defense and the prosecution over who controls

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Speaker 3: the narrative in this case. And so what Special Counsel

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Speaker 3: Jack Smith has done here is these raised all of

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Speaker 3: these issues to try to get out in front of

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Speaker 3: the Trump defenses in order to put them on the

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Speaker 3: radar not only of the court, but also on the

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Speaker 3: public to project in some ways exactly where the prosecution

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Speaker 3: is going and to try to debunk and de legitimize

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Speaker 3: these defenses. It really is a battle here over the

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Speaker 3: legal versus political view of this case. Prosecutors are going

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Speaker 3: to make this case all about the truth versus disinformation,

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Speaker 3: about proof versus propaganda, about the difference between a court

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Speaker 3: of law and the court of public opinion. And the

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Speaker 3: Trump team, on the other hand, is going to try

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Speaker 3: to make this case as political as possible, and they

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Speaker 3: are going to try to raise the same scenes that

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Speaker 3: we have seen in the campaign, a world of grievance, blaming,

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Speaker 3: trying to message something over over and over again in

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Speaker 3: the court of public opinion so that it ultimately thinks

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Speaker 3: in and becomes truth. That's what I think we're going

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Speaker 3: to see from the defense here leading up.

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Speaker 6: To the trial.

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Speaker 2: Thanks Bob. That's Robert Mints of maccarter and English. This

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Speaker 2: is Bloomberg instead of studying for finals like his classmates.

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Speaker 2: University of Pennsylvania student Ayalja Kobe went to Capitol Hill

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Speaker 2: on December fifth to warn about Penn's failure to respond

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Speaker 2: to anti semitism on campus.

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Speaker 1: Penn's ambivalence fuels the crisis that has shattered my academic

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Speaker 1: sanctuary policies meant to safeguard us have become hollow promises,

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Speaker 1: and let us be clear, if they failed Jewish students

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Speaker 1: today tomorrow, they will fail the rest of us.

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Speaker 2: That same day, Yakobe and another student filed a lawsuit

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Speaker 2: against Penn, claiming the school fostered a hostile environment that

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Speaker 2: left them feeling unsafe in class or crossing the campus.

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Speaker 2: Their lawsuit is one of many filed in recent weeks

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Speaker 2: against universities alleging anti semitism on campus and using Title

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Speaker 2: six of a Civil Rights Act of nineteen sixty four.

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Speaker 2: Joining me is Bloomberg Legal reporter David Voriacus. David has

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Speaker 2: Title six been used in this context before.

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Speaker 7: Title six has been used in different contexts, often by

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Speaker 7: African American students, but it's a new development that Jewish

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Speaker 7: students have gotten so organized and have really concentrated on

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Speaker 7: how they could use this law to debate the spike

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Speaker 7: in anti semitism on campus. Title six is enforced by

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Speaker 7: the Office of Civil Rights at the Education Department, and

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Speaker 7: so it can either be enforced by the government itself

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Speaker 7: through the Education Department's Office of Civil Rights, or in

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Speaker 7: what is sort of a novel twist, there are a

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Speaker 7: series of private lawsuits that have been filed that seek

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Speaker 7: essentially the same goal, which is to force colleges and

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Speaker 7: universities to use the policies that are on the books

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Speaker 7: that prevent the sort of harassment that Jewish students are

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Speaker 7: now complaining about. And the remedy that they're seeking is

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Speaker 7: to ask a judge to order PEN to fire faculty

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Speaker 7: and administrators that are responsible for what they say is

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Speaker 7: the anti Semitic abuse permeating the school. They also want

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Speaker 7: a judge to order PEN to suspend or expel students

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Speaker 7: engaged in such conduct. They're also looking for financial damages.

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Speaker 2: Are they asking the school to suspend or expel students

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Speaker 2: who protest against Israel or in support of the Palestinians.

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Speaker 7: No, this is a very interesting area of the law,

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Speaker 7: and what they say they're interested in putting it into

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Speaker 7: is harassment, either physical harassment, physical threats, or verbal statements

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Speaker 7: that are perceived as threats. So near protests themselves are

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Speaker 7: not subject to this type of litigation. What they're trying

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Speaker 7: to do is prevent the type of speech that is

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Speaker 7: seen as harassing or intimidating. And so that's a bit

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Speaker 7: of a gray area obviously, and it's open to interpretation.

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Speaker 7: But one of the aspects of this type of litigation

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Speaker 7: is a question about just what is anti semitism and

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Speaker 7: what constitutes anti Semitic speech. And there's an international interpretation

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Speaker 7: of antisemitism that if you deny the ability of Israel

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Speaker 7: to exist, or you say that Israel should not exist,

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Speaker 7: then that's considered anti semitism.

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Speaker 2: That's actionable, and Title six is a powerful tool to

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Speaker 2: force universities to change because of the threat of losing

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Speaker 2: federal funding.

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Speaker 7: Now, the threat is that that funding would be removed

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Speaker 7: because of discrimination. In reality, it's very rare for the

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Speaker 7: Education Department, for instance, to actually withhold funding, and schools

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Speaker 7: are aware that it's a very bad practice to be

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Speaker 7: considered to be discriminatory by the Education Department, and so

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Speaker 7: they generally come to the bargaining table and reach agreements

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Speaker 7: to change their practices.

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Speaker 2: Thanks so much, David. That's Bloomberg Legal reporter David voriankis.

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Speaker 5: Okay, everybody, it's me, Mickey Mouse. Say you want to

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Speaker 5: come inside my clubhouse. To make the clubhouse up here,

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Speaker 5: I get to say the magic words miss ska mosca

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Speaker 5: Mickey Mouse.

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Speaker 2: Mickey Mouse, perhaps the most iconic cartoon character of all time,

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Speaker 2: is now officially in the public domain, well, at least

438
00:25:15,040 --> 00:25:18,880
Speaker 2: the first iteration of Mickey, introduced in nineteen twenty eight

439
00:25:19,040 --> 00:25:28,840
Speaker 2: in the cartoon short Steamboat Willie. After almost a century,

440
00:25:29,000 --> 00:25:33,040
Speaker 2: the copyright on Steamboat Willie has expired, Like thousands of

441
00:25:33,040 --> 00:25:37,040
Speaker 2: other copyrighted works published in nineteen twenty eight. That means

442
00:25:37,040 --> 00:25:40,919
Speaker 2: that anyone can use that version of Mickey without permission.

443
00:25:41,520 --> 00:25:45,320
Speaker 2: So Mickey Mouse fans get ready for the darker version

444
00:25:45,400 --> 00:25:49,199
Speaker 2: of your favorite friendly mouse. He's being cast in horror

445
00:25:49,240 --> 00:25:59,200
Speaker 2: movies like Mickey's Mousetrap. Turn around to see Mickey as

446
00:25:59,240 --> 00:26:04,080
Speaker 2: the slasher. It's a faith that befell another beloved children's character,

447
00:26:04,280 --> 00:26:08,360
Speaker 2: Winnie the Poo, after his copyright expired, and he ended

448
00:26:08,440 --> 00:26:12,560
Speaker 2: up starring in Winnie the Poo Blood and Honey. Joining

449
00:26:12,560 --> 00:26:15,119
Speaker 2: me to talk about this new role for Binki is

450
00:26:15,200 --> 00:26:19,119
Speaker 2: intellectual property litigator Terrence Ross, a partner at cat Newchen

451
00:26:19,200 --> 00:26:22,960
Speaker 2: Rosenman Terry. The length of copyright protection has been changed

452
00:26:22,960 --> 00:26:24,640
Speaker 2: by Congress several times.

453
00:26:25,359 --> 00:26:30,000
Speaker 6: It's a very interesting story the history of durations of

454
00:26:30,119 --> 00:26:33,240
Speaker 6: copyright in the United States. You know, the copyright is

455
00:26:33,280 --> 00:26:36,199
Speaker 6: actually embedded in the Constitution of the United States. It

456
00:26:36,359 --> 00:26:40,680
Speaker 6: expressly gives power to Congress to legislate copyrights for the

457
00:26:40,720 --> 00:26:43,840
Speaker 6: protection of works, but then has a qualifier in the

458
00:26:43,840 --> 00:26:47,920
Speaker 6: Constitution It says four limited times, meaning that it can't

459
00:26:47,920 --> 00:26:51,120
Speaker 6: be in perpetuity. It has to be some set number

460
00:26:51,160 --> 00:26:54,000
Speaker 6: of years. And the first Copyright Act set copyright will

461
00:26:54,080 --> 00:26:57,760
Speaker 6: last fourteen years, and then over the nineteenth century that

462
00:26:57,920 --> 00:27:00,240
Speaker 6: was expanded to twenty eight years. And then you have

463
00:27:00,400 --> 00:27:03,639
Speaker 6: the famous nineteen oh nine reforms of the copyright lost,

464
00:27:03,800 --> 00:27:05,760
Speaker 6: and one of the big issues was is twenty eight

465
00:27:05,840 --> 00:27:08,840
Speaker 6: years enough? And you have the famous episode where Samuel

466
00:27:08,840 --> 00:27:14,280
Speaker 6: Longhorn Clemens Mark Twain comes and testifies live before Congress,

467
00:27:14,320 --> 00:27:17,080
Speaker 6: and one of the congressmen asks him, how long do

468
00:27:17,200 --> 00:27:21,480
Speaker 6: you think the copyright and should last, and Mark Twain

469
00:27:21,520 --> 00:27:23,800
Speaker 6: famously said, well, I think it should be long enough

470
00:27:23,800 --> 00:27:25,919
Speaker 6: to take care of my children, but the grandchildren can

471
00:27:26,000 --> 00:27:30,159
Speaker 6: fend for themselves. And that was literally, you'll take a

472
00:27:30,280 --> 00:27:31,320
Speaker 6: a holy rip.

473
00:27:31,760 --> 00:27:36,600
Speaker 2: It's the original Mickey Mouse in Steamboat Willie that's entering

474
00:27:36,640 --> 00:27:40,439
Speaker 2: the public domain, right, So he's entirely in black and white.

475
00:27:40,520 --> 00:27:43,760
Speaker 2: He doesn't wear a shirt or those signature white gloves,

476
00:27:44,000 --> 00:27:47,520
Speaker 2: he has no voice, upon in your nose, a long tail,

477
00:27:47,760 --> 00:27:51,200
Speaker 2: and solid black eyes for pupils. It's not the version

478
00:27:51,240 --> 00:27:52,200
Speaker 2: of Mickey.

479
00:27:51,840 --> 00:27:54,360
Speaker 6: Mouse that we know, so it's not the version that

480
00:27:54,400 --> 00:27:56,720
Speaker 6: you run into if you go to Disney World. A

481
00:27:56,760 --> 00:27:59,359
Speaker 6: lot of people forget the origins of Mickey Mouse. The

482
00:27:59,400 --> 00:28:03,280
Speaker 6: first film he appeared in was called Steamboat Willie, and

483
00:28:03,359 --> 00:28:08,200
Speaker 6: it was the first animated film with fully synchronized sound.

484
00:28:08,800 --> 00:28:11,240
Speaker 6: And so in preparation for this show, I went back

485
00:28:11,280 --> 00:28:13,280
Speaker 6: and watched it again. It's only seven and a half minutes,

486
00:28:13,320 --> 00:28:16,320
Speaker 6: and it's now obviously available on every YouTube channel that

487
00:28:16,400 --> 00:28:18,960
Speaker 6: you can find, because it's no longer some copyrights in

488
00:28:19,000 --> 00:28:22,560
Speaker 6: the public domain. And you've described it exactly right. The

489
00:28:22,600 --> 00:28:25,919
Speaker 6: incredible thing is he never talks in the movie. You know,

490
00:28:25,960 --> 00:28:29,920
Speaker 6: there's lots of sound, lots of music, including a sort

491
00:28:29,920 --> 00:28:32,800
Speaker 6: of obnoxious rendition of Turkey in the Straw, but he

492
00:28:32,880 --> 00:28:37,520
Speaker 6: never talks, and many of his physical characteristics are just different,

493
00:28:37,680 --> 00:28:39,760
Speaker 6: you know. The one you notice immediately is the lack

494
00:28:39,800 --> 00:28:42,040
Speaker 6: of the white gloves, and indeed the name Mickey Mouse

495
00:28:42,120 --> 00:28:45,960
Speaker 6: is not used. It's Steamboat Willie. And so what is

496
00:28:46,000 --> 00:28:49,960
Speaker 6: now in the public domain is that story. That film

497
00:28:50,120 --> 00:28:53,840
Speaker 6: is in the public domain. And the long time Court

498
00:28:53,880 --> 00:28:57,640
Speaker 6: president says that a character in a story or a

499
00:28:57,680 --> 00:29:00,320
Speaker 6: movie or a novel that comes in the public domain,

500
00:29:00,400 --> 00:29:03,000
Speaker 6: then the character also comes into the public domain. But

501
00:29:03,080 --> 00:29:06,000
Speaker 6: it is that character. It's limited to that character. In

502
00:29:06,040 --> 00:29:07,120
Speaker 6: Steamboat Willie.

503
00:29:07,480 --> 00:29:10,440
Speaker 2: Two directors say they're going to release horror films with

504
00:29:10,760 --> 00:29:14,800
Speaker 2: Steamboat Willie. A trailer for one, entitled Mickey's Mousetrap has

505
00:29:14,840 --> 00:29:18,680
Speaker 2: already been released. In the trailer, I saw Mickey didn't speak,

506
00:29:18,720 --> 00:29:21,400
Speaker 2: and he was in black and white. But suppose someone

507
00:29:21,480 --> 00:29:25,840
Speaker 2: colorized Mickey or used his high pitched voice or even

508
00:29:25,880 --> 00:29:27,440
Speaker 2: those iconic white gloves.

509
00:29:28,160 --> 00:29:31,120
Speaker 6: I think colorization would be fine, or filming it in

510
00:29:31,160 --> 00:29:36,000
Speaker 6: color would be fine. The squeaky voice is something that

511
00:29:36,680 --> 00:29:40,120
Speaker 6: we've for fun argued about within the copyright bark. There

512
00:29:40,200 --> 00:29:43,880
Speaker 6: is one argument that that's not copyrightable the first place,

513
00:29:44,160 --> 00:29:47,440
Speaker 6: it's just a squeaky voice. There are others who say, no, no, no,

514
00:29:47,520 --> 00:29:50,840
Speaker 6: that's a character trait that's unique to Mickey and should

515
00:29:50,840 --> 00:29:53,440
Speaker 6: be copyrightable. So that issue is actually up in the air.

516
00:29:54,080 --> 00:29:58,480
Speaker 6: The gloves are actually in a different realm. In my view,

517
00:29:58,800 --> 00:30:02,440
Speaker 6: the gloves have been very significant for quite some time now.

518
00:30:02,800 --> 00:30:06,480
Speaker 6: There have been ad campaigns involving just the gloves. I

519
00:30:06,520 --> 00:30:10,600
Speaker 6: think that's completely different than the color of the shorts.

520
00:30:10,720 --> 00:30:13,720
Speaker 6: I mean, I saw the article on Variety, as you

521
00:30:13,760 --> 00:30:17,800
Speaker 6: probably did, who Stephen Lamott was actually saying in announcing

522
00:30:17,840 --> 00:30:21,840
Speaker 6: the movie that he carefully lawyered up yet a team

523
00:30:21,880 --> 00:30:25,000
Speaker 6: of lawyers already thinking about how they could do this,

524
00:30:25,200 --> 00:30:26,800
Speaker 6: And I think that's going to be one of the tricks.

525
00:30:26,840 --> 00:30:30,560
Speaker 6: Because Disney has always been aggressive about protecting his properties,

526
00:30:30,600 --> 00:30:35,120
Speaker 6: particularly Mickey Mouse. They were actually less afraid of the

527
00:30:35,280 --> 00:30:38,720
Speaker 6: horror sort of genre portrayal Mickey Mouse as opposed to

528
00:30:38,800 --> 00:30:43,560
Speaker 6: the pornographic portrayal. And there was an unlawfully made movie

529
00:30:44,000 --> 00:30:46,600
Speaker 6: I think it's called Mickey Mouse and the Air Pirates

530
00:30:46,800 --> 00:30:48,520
Speaker 6: that they sued over. But those are the sort of

531
00:30:48,560 --> 00:30:51,600
Speaker 6: concerns that Disney's always had. Those are real, and it's

532
00:30:51,600 --> 00:30:54,280
Speaker 6: going to aggressively protect Mickey Mouse. But I think you

533
00:30:54,320 --> 00:30:57,400
Speaker 6: can see all sorts of attempts to try to define

534
00:30:57,560 --> 00:31:00,320
Speaker 6: what is and what is not allowed, what is or

535
00:31:00,320 --> 00:31:03,280
Speaker 6: what is not in the public domain, and keep in mind,

536
00:31:03,280 --> 00:31:07,000
Speaker 6: this is not the first significant animated character to come

537
00:31:07,040 --> 00:31:09,240
Speaker 6: into the public debate. Winnie the Poop came into the

538
00:31:09,240 --> 00:31:12,880
Speaker 6: public domain last year, and almost immediately you saw the

539
00:31:12,920 --> 00:31:14,720
Speaker 6: same sort of thing happen. There's a movie that came

540
00:31:14,720 --> 00:31:18,080
Speaker 6: out called Winnie the Pooh, Blood and Honey, which was

541
00:31:18,120 --> 00:31:21,360
Speaker 6: also a horror, very bad horror movie that used the

542
00:31:21,400 --> 00:31:24,280
Speaker 6: Winnie the Pooh character. And this year, in addition to

543
00:31:24,680 --> 00:31:27,640
Speaker 6: Mickey Mouse or Steamboat Willie coming to the public domain,

544
00:31:28,120 --> 00:31:31,320
Speaker 6: you get Peter Pan and you get Tigger from the

545
00:31:31,360 --> 00:31:33,959
Speaker 6: Winnie the Pooh series because the House on Pooh Corner

546
00:31:34,080 --> 00:31:36,000
Speaker 6: is now in the public domain. That was the first

547
00:31:36,200 --> 00:31:39,280
Speaker 6: jjmumenbook in which Tiger was introduced to that character is

548
00:31:39,280 --> 00:31:42,440
Speaker 6: now the public domain. So you just see a lot

549
00:31:42,480 --> 00:31:45,040
Speaker 6: of this and based as you said on that trailer

550
00:31:45,080 --> 00:31:47,640
Speaker 6: that's already been put out there, it just doesn't look

551
00:31:47,720 --> 00:31:50,440
Speaker 6: like particularly good entertainment. It may make for a good

552
00:31:50,440 --> 00:31:53,800
Speaker 6: news article in Variety or Hollywood Reporter, but it just

553
00:31:53,800 --> 00:31:55,720
Speaker 6: doesn't look like it's going to make a lot of

554
00:31:55,760 --> 00:31:56,560
Speaker 6: money in my view.

555
00:31:56,960 --> 00:32:01,240
Speaker 2: And perhaps Tigger will be joining Winnie the Pooh and

556
00:32:01,320 --> 00:32:06,800
Speaker 2: Piglet as they slashed their way through another movie a sequel.

557
00:32:07,000 --> 00:32:09,160
Speaker 2: I guess we'll have to wait and see about that. Now,

558
00:32:09,200 --> 00:32:13,160
Speaker 2: what about the title of this movie, Mickey's Mousetrap? Does

559
00:32:13,200 --> 00:32:14,520
Speaker 2: that present problems?

560
00:32:14,920 --> 00:32:18,240
Speaker 6: It's certainly questionable. I think if fat low budget film

561
00:32:18,320 --> 00:32:21,520
Speaker 6: had hired lawyers, they would have cautioned against using that.

562
00:32:21,560 --> 00:32:24,440
Speaker 6: And I note that the untitled work coming out by

563
00:32:24,760 --> 00:32:28,040
Speaker 6: Steven Lamore later this year, in their announcement, they were

564
00:32:28,080 --> 00:32:30,880
Speaker 6: really careful to say we're not using the name Mickey Mouse.

565
00:32:30,920 --> 00:32:34,280
Speaker 6: They're going to use Steamboat Willie throughout the movie. And

566
00:32:34,320 --> 00:32:36,480
Speaker 6: that indeed maybe the title or at the moment that

567
00:32:36,560 --> 00:32:39,120
Speaker 6: doesn't even have a working title. And that's again an

568
00:32:39,200 --> 00:32:42,720
Speaker 6: example of how you have to navigate these potential traps

569
00:32:42,960 --> 00:32:47,640
Speaker 6: to avoid generating a lawsuit by Disney. And it's again

570
00:32:47,760 --> 00:32:50,600
Speaker 6: a sign of how you can be as creative as

571
00:32:50,600 --> 00:32:52,920
Speaker 6: you want with the new product you're bringing out, but

572
00:32:53,000 --> 00:32:55,200
Speaker 6: you got to get advice from the lawyers as to

573
00:32:55,240 --> 00:32:57,200
Speaker 6: how to do this. And it seems like there's Bill Moore.

574
00:32:57,200 --> 00:32:59,920
Speaker 6: It's done a pretty good job so far of anticipating

575
00:33:00,040 --> 00:33:02,040
Speaker 6: some of the traps that might be out there.

576
00:33:02,120 --> 00:33:07,240
Speaker 2: The Mickey Mouse traps. Sorry didn't resist and I just

577
00:33:07,280 --> 00:33:11,400
Speaker 2: couldn't resist, and Disney still retains trademarks on Mickey Mouse.

578
00:33:11,480 --> 00:33:15,760
Speaker 6: Right, The trademark in Mickey Mouse continues. And if you

579
00:33:15,840 --> 00:33:19,960
Speaker 6: do anything that suggests that your use of the Mickey

580
00:33:20,000 --> 00:33:24,760
Speaker 6: Mouse character somehow connects you or associates you, or you

581
00:33:24,800 --> 00:33:27,120
Speaker 6: are somehow affiliated with Disney, you're gonna get a trademark

582
00:33:27,120 --> 00:33:29,680
Speaker 6: claws it set aside copyright, and that'll be a very

583
00:33:29,920 --> 00:33:31,520
Speaker 6: very successful lawsuit, I think.

584
00:33:32,120 --> 00:33:33,760
Speaker 2: And what does the trademark cover.

585
00:33:34,560 --> 00:33:39,440
Speaker 6: So the trademark is on the phrase Mickey Mouse and

586
00:33:40,080 --> 00:33:43,200
Speaker 6: to the extent that that is used in commerce to

587
00:33:43,360 --> 00:33:47,840
Speaker 6: identify a product or service of the Disney Corporation. The

588
00:33:47,840 --> 00:33:51,400
Speaker 6: same with the image the character Mickey Mouse. There have

589
00:33:51,480 --> 00:33:53,920
Speaker 6: been multiple literations other years, but you know, as each

590
00:33:53,960 --> 00:33:57,320
Speaker 6: one comes free, it becomes possible for you to use

591
00:33:57,480 --> 00:34:00,240
Speaker 6: the image of that character as long as you do

592
00:34:00,400 --> 00:34:03,200
Speaker 6: not use it in such a way as to suggest

593
00:34:03,200 --> 00:34:08,400
Speaker 6: an affiliation and an association with Disney. You can't mislead people.

594
00:34:08,560 --> 00:34:10,239
Speaker 6: And that's the tricky part where you have about the

595
00:34:10,239 --> 00:34:12,920
Speaker 6: trademark and a copyright, as is the case here, and

596
00:34:12,960 --> 00:34:14,880
Speaker 6: it's going to be a real challenge for some of

597
00:34:14,880 --> 00:34:18,240
Speaker 6: the people wanting to use the steamboat Willie character going

598
00:34:18,280 --> 00:34:21,399
Speaker 6: forward to figure out how to navigate in such way

599
00:34:21,440 --> 00:34:24,440
Speaker 6: that you don't open yourself up for a charge of

600
00:34:24,560 --> 00:34:28,480
Speaker 6: trademark infringerom by suggesting the association or affiliation with Disney,

601
00:34:28,880 --> 00:34:29,920
Speaker 6: so well, watch out for.

602
00:34:29,880 --> 00:34:34,240
Speaker 2: The lawsuits from the famously litigious Disney. Thanks so much, Terry.

603
00:34:34,600 --> 00:34:37,680
Speaker 2: Public Domain week is always a fascinating time to talk

604
00:34:37,719 --> 00:34:41,040
Speaker 2: to you. That's Terrence Ross of Catain, Eugen Rosenman, and

605
00:34:41,080 --> 00:34:43,560
Speaker 2: that's it for this edition of the Bloomberg Law Podcast.

606
00:34:43,920 --> 00:34:46,279
Speaker 2: Remember you've can always get the latest legal news by

607
00:34:46,320 --> 00:34:50,120
Speaker 2: subscribing and listening to the show on Apple Podcasts, Spotify,

608
00:34:50,440 --> 00:34:54,279
Speaker 2: and at Bloomberg dot com, slash podcast, slash Law. I'm

609
00:34:54,360 --> 00:34:56,799
Speaker 2: June Grosso and this is Bloomberg