WEBVTT - Vanessa Bryant Suing LA County Over Crash Photos 0:00:03.160 --> 0:00:07.960 This is Bloomberg Law with June Bresso from Bloomberg Radio. 0:00:09.440 --> 0:00:13.520 Vanessa Brian thanked the fans as thousands gathered to celebrate 0:00:13.560 --> 0:00:16.840 the lives of her husband, Kobe Bryant, and their daughter 0:00:16.960 --> 0:00:20.799 Jeanna at l A Staples Center after their deaths in 0:00:20.840 --> 0:00:25.560 a helicopter crash in January. Of the outpouring of love 0:00:25.640 --> 0:00:28.120 and support that my family has felt from around the 0:00:28.160 --> 0:00:32.040 world has been so uplifting. Now Bryant is taking on 0:00:32.200 --> 0:00:36.360 Los Angeles County in federal court, saying her privacy was 0:00:36.400 --> 0:00:41.239 invaded when sheriff's deputies and firefighters shared crash site photos 0:00:41.280 --> 0:00:44.920 with their friends and colleagues. Join me is Warrington Parker, 0:00:45.280 --> 0:00:49.879 a partner Crowell and Mooring, explain what her causes of 0:00:49.960 --> 0:00:54.680 action are. She is doing over three different things. One 0:00:55.000 --> 0:00:58.000 is the invasion of her right to privacy, that is 0:00:58.200 --> 0:01:00.800 that people have a right to prior to see as 0:01:00.840 --> 0:01:05.040 to photos and content of materials relating to the death 0:01:05.080 --> 0:01:08.840 of a loved one. The second is negligent that l 0:01:08.880 --> 0:01:11.800 a county in the Sheriff's department the fire department of 0:01:11.840 --> 0:01:16.120 the individuals negligent may disclose these materials, which are the 0:01:16.240 --> 0:01:19.640 photos of Kobe Bryant and his daughter. And then the 0:01:19.760 --> 0:01:24.120 third is a statutory client. It's called the section actions, 0:01:24.840 --> 0:01:29.560 which is that constitutional deprocess likes were violated by the 0:01:29.640 --> 0:01:33.920 disclosure of the various photographs. Are any of these claims 0:01:34.080 --> 0:01:37.760 unique in this kind of situation, It is certainly unique. 0:01:37.920 --> 0:01:41.920 This doesn't happen every day, but in reading the various papers, 0:01:42.040 --> 0:01:45.360 there appears to be cases that have dealt with these 0:01:45.360 --> 0:01:48.800 issues before. And part of the legal tension in the 0:01:48.880 --> 0:01:53.040 case is are these claims viable? And certainly the defendants 0:01:53.040 --> 0:01:56.160 are saying that they're not viable. For example, defense that 0:01:56.200 --> 0:02:00.400 they're saying it's not enough just to have a private photo. Instead, 0:02:00.440 --> 0:02:02.840 there needs to be more publicity, such as it being 0:02:02.880 --> 0:02:06.720 on the Internet and so on. And MS Bryant's council 0:02:06.760 --> 0:02:09.560 has pointed out that in fact are cases where it 0:02:09.600 --> 0:02:12.400 does not need to be made public, that this is enough. 0:02:12.600 --> 0:02:15.480 I think that legal tension may under alive this That 0:02:15.639 --> 0:02:17.760 may be an issue in part going to the jury, 0:02:17.840 --> 0:02:21.000 but mainly that's going to ultimately be an issue for 0:02:21.040 --> 0:02:25.040 the court. A primary issue in the case is whether 0:02:25.160 --> 0:02:29.200 she suffered emotional distress as a result of the County's 0:02:29.240 --> 0:02:32.320 actions and how much it should be compensated for that. 0:02:32.720 --> 0:02:35.880 So Los Angeles County officials are arguing. One thing they're 0:02:35.960 --> 0:02:39.160 arguing is that she suffered emotional distress from the death 0:02:39.240 --> 0:02:42.560 of her husband and daughter, rather than distress that the 0:02:42.639 --> 0:02:47.040 photos were leaked. How can a jury separate those well, 0:02:47.400 --> 0:02:51.400 emotional distress damages are always a very difficult thing, both 0:02:51.480 --> 0:02:55.280 to prove and to disprove. Right, it's just how much 0:02:55.320 --> 0:02:59.720 are you hurt? And there's no clear marker for that. However, 0:03:00.160 --> 0:03:03.239 I think the County has a difficult time with that 0:03:03.560 --> 0:03:08.920 argument made. Certainly without any dispute. Someone suffers emotional distress 0:03:08.960 --> 0:03:11.480 when a loved one dies. But I think it is 0:03:11.680 --> 0:03:15.040 within the realm of experience and probability that you can 0:03:15.080 --> 0:03:20.840 exacerbate that emotional distress by mistreating the body, mistreating the 0:03:20.880 --> 0:03:24.920 family of loved ones, or taking photos really according to 0:03:24.960 --> 0:03:28.000 appointness at least almost like there was a trophy hunting 0:03:28.120 --> 0:03:31.320 type of experience. And I think think any rational person 0:03:31.400 --> 0:03:36.120 can separate out one trauma from another. Now, does that 0:03:36.240 --> 0:03:40.160 impact your damages? Perhaps, yes, It doesn't make it impossible 0:03:40.400 --> 0:03:44.640 to conceive that she suffered additional emotional distress because of 0:03:44.680 --> 0:03:49.160 these photos. I don't think that's true. Bryant's expert witness 0:03:49.400 --> 0:03:55.080 testified that Los Angeles cops and deputies keep what's called 0:03:55.200 --> 0:03:59.880 Google books with graphic photos of dead celebrities. Isn't that 0:04:00.080 --> 0:04:04.840 testimony about other officers prejudicial in this case? So I 0:04:04.880 --> 0:04:08.520 think it is prejudicial, but it's it's wrongfully prejudicial. I 0:04:08.560 --> 0:04:11.400 think is the question right? It certainly hurts in that 0:04:11.440 --> 0:04:14.000 way it's prejudicial, but I think the question is legally 0:04:14.000 --> 0:04:17.480 as the prejudicial. I think when the defendants opened by 0:04:17.560 --> 0:04:20.400 saying that this is all part of a train exercise 0:04:20.760 --> 0:04:24.400 for the distribution was necessary, I think it opened the 0:04:24.440 --> 0:04:28.560 door to precisely this type of evidence, because it certainly 0:04:28.600 --> 0:04:31.400 shines the light on on the truth or not of 0:04:31.440 --> 0:04:34.960 the statement that the distribution of the taken of the 0:04:35.080 --> 0:04:38.680 pose and in the distribution was for the purpose of 0:04:39.200 --> 0:04:44.320 training for some necessary a rather than being a entry 0:04:44.400 --> 0:04:48.040 in the Ghoul book. The defense wanted to show Instagram 0:04:48.120 --> 0:04:52.680 photos of you know, Brian's social media posts that show 0:04:52.839 --> 0:04:57.360 her and her family on lavish vacations and socializing with 0:04:57.440 --> 0:05:01.680 celebrities since the death of her husband. It hasn't come 0:05:01.720 --> 0:05:04.760 in so far. I don't know whether that would come 0:05:04.800 --> 0:05:07.240 in if I had to handicap it, I would say 0:05:07.240 --> 0:05:11.160 that's not coming in because however rich and famous you are, 0:05:11.400 --> 0:05:14.240 and and and I understand they're playing that up. That 0:05:14.320 --> 0:05:20.120 doesn't mean that you can't suffer emotional distress. Now, if 0:05:20.120 --> 0:05:25.799 they're saying that these photos are inconsistent with that claim 0:05:25.839 --> 0:05:30.400 of emotional distress, but that's different. And so as an example, 0:05:31.000 --> 0:05:33.880 it's well known in the insurance world that if someone 0:05:34.080 --> 0:05:38.400 is claiming back injuring collecting insurance, they'll often be photos 0:05:38.440 --> 0:05:42.000 taken or video taken of that person lifting heavy boxes 0:05:42.000 --> 0:05:45.960 and so on. And that's perfectly admissible. But merely to 0:05:46.040 --> 0:05:49.159 show someone has the ability to live in a rich 0:05:49.240 --> 0:05:53.800 lifestyle isn't sufficient to rebut a claim of emotional distress. 0:05:53.960 --> 0:05:57.920 There is one photo of her on Halloween dressed as 0:05:58.000 --> 0:06:01.919 Kruella de Ville. The talks about the stages of grief, 0:06:02.120 --> 0:06:07.240 and she adds one called revenge. Might that have some bearing, 0:06:07.960 --> 0:06:11.479 perhaps but fairly minimal. The fact that she's thinking to 0:06:11.560 --> 0:06:14.560 vindicate her right. Whether you call it revenge or you 0:06:14.680 --> 0:06:18.400 call it thinking to vindicate what you think is a wrongdoing, 0:06:18.960 --> 0:06:22.560 is I think well within the norm? Which side do 0:06:22.640 --> 0:06:26.200 you think has the better case here? Right now, I 0:06:26.400 --> 0:06:29.920 like pointest chances, and let me tell you what I'm thinking. 0:06:30.160 --> 0:06:34.280 You have a case where word photos were taken and 0:06:34.560 --> 0:06:37.400 there is a history of these photos being taken in 0:06:37.480 --> 0:06:40.520 a Google book. You have a case in which people 0:06:40.640 --> 0:06:45.440 have at least as points painted have lied outright lie 0:06:45.839 --> 0:06:49.000 about what they did with the photos and why. You 0:06:49.080 --> 0:06:52.599 have the defendant saying that these photos were taken and 0:06:52.640 --> 0:06:56.320 then distributed for the purposes of training. But you have 0:06:56.480 --> 0:06:59.520 them distributed at a bar, you have them distributed to 0:06:59.600 --> 0:07:02.680 a been playing a video game, you have them distributed 0:07:02.839 --> 0:07:06.440 at an awards ceremony. That doesn't make sense. You didn't 0:07:06.520 --> 0:07:11.360 have these arguments about foliation of evidence. And I know 0:07:11.480 --> 0:07:14.160 that the defendants are saying that the reason that they 0:07:14.200 --> 0:07:17.280 immediately told people to remove it from their phones in 0:07:17.440 --> 0:07:21.720 order to mitigate any continuing harm. But there was no 0:07:21.800 --> 0:07:25.680 attempt to ensure that these photos were in fact destroyed, 0:07:26.600 --> 0:07:29.840 and it looks more like they were trying to cover 0:07:30.000 --> 0:07:33.520 up more than anything else included though in that To 0:07:33.640 --> 0:07:36.720 have the extra spite is you have at least one 0:07:36.840 --> 0:07:40.240 of the deputy high up deputy saying, should we really 0:07:40.360 --> 0:07:43.720 do this? We've gotten in trouble before for this and 0:07:43.760 --> 0:07:47.760 I'm paraporting, and so even at that time, there's a 0:07:47.840 --> 0:07:50.400 bit of distinction about this. I would add just to 0:07:50.680 --> 0:07:53.920 two more points. First of all, you know, Kobe Bryant 0:07:54.320 --> 0:07:58.120 is a well known figure in Los Angeles. His wife 0:07:58.240 --> 0:08:00.840 is a well known figure in last area, Joyce, and 0:08:00.920 --> 0:08:05.160 no one thinks anything bad about this. Contrast that to 0:08:05.280 --> 0:08:08.800 the Los Angeles Police Department in the Los Angeles Sheriff's Office, 0:08:09.040 --> 0:08:13.280 where at least the Sheriff's Office has very recently been 0:08:13.360 --> 0:08:18.000 in the news for threatening a newspaper reporter and otherwise 0:08:18.200 --> 0:08:22.400 doesn't necessarily have the best pr campaign in the world. 0:08:22.720 --> 0:08:26.840 I think these other things that will weigh in points 0:08:26.880 --> 0:08:30.120 favor how much money they collect, how much money is 0:08:30.160 --> 0:08:33.000 awarded as a completely different question. But on the issue 0:08:33.040 --> 0:08:36.160 of liability, if I were handicapping it, I would put 0:08:36.200 --> 0:08:38.640 my money on point. And what do you think the 0:08:38.640 --> 0:08:43.280 biggest legal hurdle is for Bryant. I think that the 0:08:43.320 --> 0:08:47.520 biggest legal hurdle will be whether or not what happened 0:08:47.600 --> 0:08:50.880 here is consistent with a viable claim under the law. 0:08:51.240 --> 0:08:54.280 And defendants are certainly saying, with no exception that this 0:08:54.360 --> 0:08:58.360 is not cognizable under the law, that it does not 0:08:58.600 --> 0:09:03.720 fall within the scope. Prior case, Los Angeles County agreed 0:09:03.760 --> 0:09:06.080 to pay two and a half million dollars to settle 0:09:06.120 --> 0:09:10.720 a similar case brought by two families whose relatives died 0:09:10.800 --> 0:09:14.760 in the crash. That indicate to you that Vanessa Briant 0:09:14.800 --> 0:09:18.160 is asking for more than that, or there are reports 0:09:18.200 --> 0:09:21.000 that she just didn't want to settle. I don't know 0:09:21.120 --> 0:09:24.920 the answer, at least believe that she must have been 0:09:24.920 --> 0:09:28.520 asking for more. Just finally, I'll ask you about the jury. 0:09:28.640 --> 0:09:32.800 The jury includes a nun, someone who works in TV production, 0:09:33.040 --> 0:09:36.959 a college student, a real estate investor, a pharmaceutical researcher, 0:09:37.200 --> 0:09:40.240 a computer professor, and a restaurant host. So a real 0:09:40.480 --> 0:09:46.040 cross section of l A. That's a very educated jury 0:09:46.080 --> 0:09:49.400 for the commany of l A. It's a cross section. Um, 0:09:49.400 --> 0:09:53.280 it's both educated and come with work experience. But this 0:09:53.440 --> 0:09:56.920 is also a function of it being in federal court, 0:09:56.960 --> 0:09:59.839 where I think the voting wills supply the names of 0:10:00.000 --> 0:10:02.360 a jury. But in l A County or the Central 0:10:02.400 --> 0:10:06.000 District of California, which includes more than l A County, UM, 0:10:06.080 --> 0:10:08.800 you can get people who are much less educated and 0:10:08.960 --> 0:10:12.840 experienced than this jury. I tend to think that that's 0:10:12.920 --> 0:10:15.160 also weighs in favor of points if in this case, 0:10:15.280 --> 0:10:17.959 I don't think this is the case where you need 0:10:18.040 --> 0:10:21.760 to have a jury with less experience or less education. 0:10:22.080 --> 0:10:25.200 Thanks for being on the show. That's Warrington Parker, a 0:10:25.320 --> 0:10:30.120 partner Crowell and Mooring. There has been a dramatic uptick 0:10:30.200 --> 0:10:36.000 in banning books, book bands, and challenges doubled from one 0:10:36.360 --> 0:10:40.000 according to the American Library Association, and it seems to 0:10:40.040 --> 0:10:43.839 reflect the growing polarization in our country. Joining me is 0:10:43.920 --> 0:10:47.240 First Amendment expert Eugene Polk, a professor at u c 0:10:47.440 --> 0:10:50.200 l A Law School. Eugene tell us about the one 0:10:50.280 --> 0:10:54.200 Supreme Court case about school libraries where the split was 0:10:54.320 --> 0:10:59.080 four for one. Well, let's just first step back. One 0:10:59.160 --> 0:11:04.000 thing that the said in that case. Basically all the 0:11:04.080 --> 0:11:09.320 justices agreed that curriculum decisions what to include in the 0:11:09.559 --> 0:11:14.280 reading materials for a class are basically up to the school. 0:11:14.400 --> 0:11:16.840 So the school can say we just don't think this 0:11:16.880 --> 0:11:19.400 book is suitable for a class for whatever reason. We 0:11:19.480 --> 0:11:21.040 just don't think this is the kind of book we 0:11:21.040 --> 0:11:23.559 should be studying it in class. So that's one thing, 0:11:23.640 --> 0:11:26.080 just to make clear. The other thing that that the 0:11:26.080 --> 0:11:29.400 court actually never did he has used the word ban 0:11:29.640 --> 0:11:33.720 with regard to remove of books from the library school library, 0:11:33.720 --> 0:11:37.560 because it's not a ban, it's a choice about which 0:11:37.679 --> 0:11:40.920 books to include in which books to exclude, in a 0:11:41.040 --> 0:11:43.520 situation where of course, the library has to be making 0:11:43.559 --> 0:11:46.080 these choices all the time, right First of all, it 0:11:46.120 --> 0:11:49.760 has only limited space, and second, unlike a public library, 0:11:49.800 --> 0:11:51.880 it's supposed to be focusing on books that are special 0:11:52.000 --> 0:11:55.600 interest in value to children. So the court understood that 0:11:55.640 --> 0:11:58.360 it wasn't a ban of a book, it was a 0:11:58.440 --> 0:12:01.880 choice to remove a book from the library. And the 0:12:01.960 --> 0:12:05.400 other thing that basically everybody on the court agreed on 0:12:05.840 --> 0:12:09.040 is that if the removal was on grounds that it 0:12:09.160 --> 0:12:13.880 was not age suitable, for example, because it was pervasively vulgar, 0:12:14.040 --> 0:12:16.560 which is to say view by the school is pervasively vulgar. 0:12:16.600 --> 0:12:20.760 Obviously people disagree on such matters or otherwise not age appropriate, 0:12:21.080 --> 0:12:23.440 that the school would be entitled to remove. The issue 0:12:23.440 --> 0:12:27.320 on which the court split four four is whether a 0:12:27.480 --> 0:12:30.440 library once and by the way, pretty much everybody also 0:12:30.480 --> 0:12:33.439 agreed that a library can decide what books to get 0:12:33.480 --> 0:12:35.760 in the first place, based on more or less whatever 0:12:35.840 --> 0:12:39.760 criteria the library wants. But the courts split four four 0:12:40.160 --> 0:12:43.679 on this question of whether a library can rem or 0:12:43.760 --> 0:12:46.800 a school system can remove a book from the library 0:12:47.120 --> 0:12:50.840 because of the book's ideology. Could it say this book 0:12:51.200 --> 0:12:55.560 is unpatriotic or perhaps today it would be questioned, is 0:12:55.600 --> 0:13:00.000 it anti gay or is it unduly pro gay, or 0:13:00.440 --> 0:13:04.320 setting aside whether whether there's explicit sexual discussion there, or 0:13:04.400 --> 0:13:07.920 whether it's racist, or whether it's for trays smoking in 0:13:07.920 --> 0:13:10.240 a positive light, although maybe that's also a matter of 0:13:10.240 --> 0:13:14.439 age appropriateness. So in any event that the court split 0:13:14.480 --> 0:13:16.920 on four four, how did that happen? Why four four 0:13:16.920 --> 0:13:19.520 when there were nine justice? Well, for Justice is basically 0:13:19.559 --> 0:13:24.800 said the school can't discriminate based on ideology more or 0:13:24.840 --> 0:13:27.400 less in removing books. And because there's a dispute on 0:13:27.480 --> 0:13:31.160 the real reason why they discriminated based on ideology, this 0:13:31.240 --> 0:13:34.040 case should be sent back down for further fact finding 0:13:34.040 --> 0:13:36.760 on what the real reason that was. For Justice more 0:13:36.800 --> 0:13:38.840 or less the liberal justice then the more or less 0:13:38.840 --> 0:13:42.959 conservative justices, four of them said school is perfectly free 0:13:43.000 --> 0:13:45.200 to discriminate based on ideal that you may be not 0:13:45.320 --> 0:13:49.120 in extreme situations like if it's actually partisan, we won't 0:13:49.160 --> 0:13:52.240 have any books by Republican writers or any books by 0:13:52.240 --> 0:13:56.599 democratic writers. But setting aside extreme situation like that a 0:13:56.679 --> 0:13:59.920 school is free to discriminate based on ideology, so therefore 0:14:00.000 --> 0:14:02.439 there's no need to send the case back. Justice White 0:14:02.480 --> 0:14:05.000 was the swing vote. And here's what he said. There's 0:14:05.040 --> 0:14:08.760 this factual dispute as to what the reason was why 0:14:09.160 --> 0:14:14.080 the school removed the books. If it turns out that 0:14:14.640 --> 0:14:18.400 it removed the books because they were pervasively vulgar otherwise 0:14:18.400 --> 0:14:22.880 not inappropriate, then no constitutional problem. Everybody agrees. If it 0:14:22.920 --> 0:14:26.720 turns out they did it for ideological reasons, then there 0:14:26.800 --> 0:14:29.320 might or might not be a constitutional problem. Could be 0:14:29.480 --> 0:14:32.240 that the liberal justices are right, could be conservative justice right. 0:14:32.560 --> 0:14:34.840 I don't have to decide it. We don't have to decide. 0:14:35.120 --> 0:14:39.360 The better route is to wait until we figure out 0:14:39.360 --> 0:14:43.320 the real reason for the removal and then resolved this 0:14:43.440 --> 0:14:46.520 First Amendment question of whether that reason is a permissible reason. 0:14:46.760 --> 0:14:52.000 And that's why he agreed with the liberals solely on 0:14:52.080 --> 0:14:54.640 the question whether the case should be sent back down 0:14:54.680 --> 0:14:58.680 for further fact find So he expressly declined to go 0:14:58.760 --> 0:15:01.520 along either with the descent position on the substantive issue 0:15:02.080 --> 0:15:06.920 or with the liberals. Hesited called a plurality explurality often 0:15:07.000 --> 0:15:09.840 means the opinion that got the most votes but actually 0:15:09.880 --> 0:15:12.800 got the same number of votes as the descent for basically, so, 0:15:13.360 --> 0:15:17.080 White concluded that he didn't didn't agree with either of 0:15:17.120 --> 0:15:19.120 them because he didn't agree that this issue should even 0:15:19.160 --> 0:15:22.840 be decided until necessary. So then do you agree? In 0:15:22.880 --> 0:15:29.240 a case in Missouri, a judge rejected the student's request 0:15:29.280 --> 0:15:32.800 for a preliminary injunction, and he questioned their reliance on 0:15:33.000 --> 0:15:37.320 Justice Brennan's plurality opinion in that case, So do you 0:15:37.360 --> 0:15:40.200 agree with that that there really isn't a majority opinion 0:15:40.240 --> 0:15:43.200 to rely on there? There definitely is not a majority 0:15:43.200 --> 0:15:46.360 opinion to rely on in Pico, And in fact, quite 0:15:46.360 --> 0:15:49.560 a few lower courts have taken that view that basically 0:15:49.640 --> 0:15:51.880 there's nothing in Pico to follow. I mean, there are 0:15:52.000 --> 0:15:54.360 arguments that we should pay attention to, but they do 0:15:54.440 --> 0:15:57.280 not resolve this issue. He's having been said there was 0:15:57.320 --> 0:16:00.160 an Eighth Circuit opinion, of course, but he said, even 0:16:00.200 --> 0:16:02.760 under that opinion, which might be said to kind of 0:16:02.800 --> 0:16:05.800 go along with the liberals position, even if that opinion 0:16:05.840 --> 0:16:09.000 is still binding, it's an old case. Even so, books 0:16:09.000 --> 0:16:12.520 could be removed because of their pervasive vulgarity, which is 0:16:12.680 --> 0:16:17.440 a pervasive sexual content, or let even the pervasive because 0:16:17.440 --> 0:16:21.320 of substantial sexual content. And these particular three books sure 0:16:21.360 --> 0:16:25.520 did have sexual cunt and a school is entitled to say, 0:16:25.680 --> 0:16:27.880 we're not banning it. Students can get them in lots 0:16:27.880 --> 0:16:30.840 of other ways, but we're not going to be providing 0:16:30.880 --> 0:16:33.840 to our students books with that kind of sexual content. 0:16:34.040 --> 0:16:37.720 So besides sexual content, as you refer to, a lot 0:16:37.760 --> 0:16:41.240 of books are being challenged because they deal with LGBTQ 0:16:41.520 --> 0:16:44.680 issues or racism. Well, let's say just a school board 0:16:44.720 --> 0:16:47.160 camp chigns if we want to take these books off 0:16:47.280 --> 0:16:50.040 the shelves, what would be the reasons that you would 0:16:50.080 --> 0:16:55.280 say are legally substantial? Would hold in court? Sure, So 0:16:55.320 --> 0:16:59.160 I would say, look, if you want to not include 0:16:59.160 --> 0:17:02.480 them in your curriculum, if you want to not include 0:17:02.480 --> 0:17:06.800 them as assigned or recommended readings, you're perfectly free to 0:17:06.800 --> 0:17:10.600 do that. Setting aside a few situations under the establishment clause. 0:17:10.640 --> 0:17:13.000 I suppose if they insist that everybody read the Bible 0:17:13.480 --> 0:17:16.280 as devotional materials, that's not allowed. But that's not free 0:17:16.280 --> 0:17:20.080 speech issue. That's an establishment close issue. So setting that aside, 0:17:20.320 --> 0:17:24.040 if you think this is a bad history book, then 0:17:24.520 --> 0:17:26.639 you shouldn't assign it to have it be assigned in 0:17:26.640 --> 0:17:31.000 your placess If you think that this material is highly 0:17:31.080 --> 0:17:34.080 sexually themed, and if you think for good reason it's 0:17:34.119 --> 0:17:36.800 highly sexually themed, you're not just making that out. But 0:17:36.960 --> 0:17:40.600 but if it is highly sexually themed or otherwise, you 0:17:40.640 --> 0:17:45.119 can show his age inappropriate. Maybe because it describes things 0:17:45.119 --> 0:17:49.080 are very gra violent in a very graphical way, and 0:17:49.160 --> 0:17:52.640 it's an elementary school library left there some such then 0:17:52.640 --> 0:17:55.560 in that case you're also free to remove it. If 0:17:55.960 --> 0:17:59.960 you think that these are kind of portray or convey 0:18:00.600 --> 0:18:04.040 ideas that you disapprove of, whether ideas one or or 0:18:04.040 --> 0:18:07.399 the other about sexual orientation or about gender identity, or 0:18:07.400 --> 0:18:10.080 about American history, about race, or about the environment, or 0:18:10.119 --> 0:18:14.800 about whatever else, then you know it might be unconstitutional 0:18:14.880 --> 0:18:17.880 for you to remove them from public school library shelves. 0:18:17.880 --> 0:18:20.960 So that's so then you're worried, and you should be 0:18:21.000 --> 0:18:23.840 worried about a lawsuit in this kind of situation, because 0:18:23.840 --> 0:18:27.640 there is a plausible claim against that. Then just keep 0:18:27.680 --> 0:18:30.600 them on the shelves. Presumably your most students don't go 0:18:30.720 --> 0:18:33.000 down to the library these days to read just right 0:18:33.000 --> 0:18:35.400 and them say history books, maybe it would be good 0:18:35.440 --> 0:18:37.920 if more students did. But my sense is that the 0:18:38.280 --> 0:18:40.240 problem most schools of students are reading too few of 0:18:40.240 --> 0:18:42.240 them are other than too many or the wrong kinds. 0:18:42.280 --> 0:18:44.760 And if it's not in the curriculum, it's probably not 0:18:44.800 --> 0:18:47.399 going to be much of an issue unless you try 0:18:47.480 --> 0:18:50.639 to exclude them and make it an issue, and then 0:18:50.680 --> 0:18:52.719 people will fail a lot more attention to them. Like 0:18:52.760 --> 0:18:57.360 my understanding is that when this school to in Tennessee, 0:18:57.800 --> 0:19:00.560 try to remove I think, not from the library shelves, 0:19:00.600 --> 0:19:03.240 but from actual the curriculum, which are perfectly free to do. 0:19:03.640 --> 0:19:07.200 Remove Mouse the graphic novel because there were a few 0:19:07.600 --> 0:19:12.000 relatively mild vulgarities there. There was that, and there was nudity. 0:19:12.080 --> 0:19:15.199 You know, this is nudity of a mouse. I mean 0:19:15.240 --> 0:19:18.640 the pomorphic mouse, to be sure about a mouse um 0:19:18.920 --> 0:19:20.960 who I'm told in the state of nature tend to 0:19:21.000 --> 0:19:25.399 be nude. I think so from everything I know exactly. 0:19:25.840 --> 0:19:28.000 So the result was a lot more attention to mouse 0:19:28.040 --> 0:19:30.360 and a lot more people buying mouse, I am told. So. 0:19:30.680 --> 0:19:33.560 I think it's a mistake for school boards to remove 0:19:33.720 --> 0:19:37.000 things from library shelves because of their ideas. I think 0:19:37.000 --> 0:19:39.640 it actually sends a bad message in many ways to students, 0:19:39.920 --> 0:19:42.600 and I think it practically has very little effect in 0:19:42.640 --> 0:19:46.360 the symbolic effect may in fact be bad relevant good, 0:19:46.400 --> 0:19:49.280 and the practical effect may be contraproductive. Because of this, 0:19:49.440 --> 0:19:52.400 I guess what's called the band in Boston phenomenon. I'm 0:19:52.440 --> 0:19:54.680 told that back in the day when there really were 0:19:54.800 --> 0:19:58.520 bands and not just exclusives from library shelves, bands of movies, 0:19:58.640 --> 0:20:02.199 movies couldn't be shown if the local sensors forbade it, 0:20:02.400 --> 0:20:04.880 and I think maybe even books couldn't be sold. Boston 0:20:05.080 --> 0:20:08.240 was known as being a place that would ban a 0:20:08.240 --> 0:20:10.159 lot of things in the grounds of their selations, and 0:20:10.280 --> 0:20:14.000 those places proudly labeled their items as banned in Boston 0:20:14.119 --> 0:20:17.040 in other cities because that sort of showed that they 0:20:17.040 --> 0:20:22.399 were racy. In Virginia, there's a different situation of former 0:20:22.840 --> 0:20:26.840 congressional member is trying to seek a ban on the 0:20:26.920 --> 0:20:30.800 sale of certain books that he says are obscene. So 0:20:30.840 --> 0:20:33.840 this would be stripping the right to sell a book 0:20:34.119 --> 0:20:36.679 from a Barnes and Noble, or you can't sell this 0:20:36.760 --> 0:20:39.879 book to a minor. Is that different? Yes? It is? 0:20:40.000 --> 0:20:42.280 I mean that really is there we are talking about banning, 0:20:42.640 --> 0:20:44.720 We're talking and not just about the government choosing what 0:20:44.800 --> 0:20:48.040 to include in its school library, much less school curriculum. 0:20:48.040 --> 0:20:50.879 It's choosing what private parties can distribute to other private 0:20:50.880 --> 0:20:54.560 parties in public places. So my understanding of the Virginia 0:20:54.640 --> 0:20:58.600 lawsuit is that there's already a law I think in 0:20:58.680 --> 0:21:04.600 Virginia that pre inhibits bookstores from selling material that's obscene 0:21:04.600 --> 0:21:07.480 as to miners to miners, So you don't need a 0:21:07.520 --> 0:21:10.000 specialized lawsuit for that, I think. Of course, then the 0:21:10.080 --> 0:21:12.000 question is what is obscene as to minors, and the 0:21:12.040 --> 0:21:16.280 answers has to be pretty pornographic. Simply, something that has 0:21:16.320 --> 0:21:20.800 as part of a novel some sexual elements is not 0:21:20.920 --> 0:21:23.359 going to make the work o scene. So I think 0:21:23.640 --> 0:21:26.880 he's trying to get the stuff removed from the shelves 0:21:26.960 --> 0:21:30.600 even where miners could browse. So he actually got a 0:21:30.680 --> 0:21:34.200 court to issue restraining order finding there's probable cause to 0:21:34.240 --> 0:21:36.920 believe that a court of mist and fury is obscene 0:21:36.960 --> 0:21:40.600 for unrestricted viewing by miners. So there it's not just 0:21:40.720 --> 0:21:43.720 at the checkout counter they have to card the buyer. 0:21:44.040 --> 0:21:46.480 It sounds like this was actually an attempt to try 0:21:46.480 --> 0:21:49.520 to get to the material from being even put on 0:21:49.560 --> 0:21:51.560 the shelves where miners could browse it, which is a 0:21:51.640 --> 0:21:55.560 much more serious bird. So the general rule is that 0:21:55.960 --> 0:21:59.040 a law that says you can't distribute so called harmful 0:21:59.080 --> 0:22:02.840 to miners, or more precisely obscene as to miners material 0:22:03.480 --> 0:22:07.600 two miners is constitutional the Supreme Court so held fifty 0:22:07.640 --> 0:22:11.600 plus years ago. But to be obscene as to minors, 0:22:11.640 --> 0:22:14.920 it has to lack serious artistic or literary or scientific 0:22:15.000 --> 0:22:18.280 or political value for miners. Taken as a whole. It 0:22:18.359 --> 0:22:21.359 has to appeal to the shameful or morbid interest in 0:22:21.440 --> 0:22:24.440 sex of miners. Again, taken as a whole, and it's 0:22:24.480 --> 0:22:28.520 got to be patently offensive under community standards when distributed 0:22:28.840 --> 0:22:31.200 to miners because of the way it described sex or 0:22:31.240 --> 0:22:35.680 pass excretion. So you can imagine let's say some porn 0:22:35.760 --> 0:22:39.840 magazine which is allowed for adults, but can't be distributed 0:22:39.880 --> 0:22:43.680 to miners under that standard. However, if it's a well 0:22:43.760 --> 0:22:48.439 received novel that, in the process of describing what happened 0:22:48.520 --> 0:22:52.200 to the characters, has sex scenes, then I think taken 0:22:52.240 --> 0:22:54.800 as a whole, this reviewed as having serious value, especially 0:22:54.840 --> 0:22:57.520 for older miners, and taken as a whole reviewed does 0:22:57.640 --> 0:23:01.200 not appealing to the shameful or morbid interested sex. So 0:23:01.240 --> 0:23:03.560 I think that as a practical matter, that kind of 0:23:03.760 --> 0:23:06.720 law is actually quite narrow, and it looks like that 0:23:06.800 --> 0:23:10.680 lawsuit is trying to actually apply it too books that 0:23:10.880 --> 0:23:13.679 do not fit that narrow definition, and on top of 0:23:13.680 --> 0:23:16.920 that also bar them from even being available on the 0:23:16.960 --> 0:23:21.320 normal shelves, which may be constitutionally permissible against some at 0:23:21.400 --> 0:23:24.320 least obstatist of minors material, but it's surely an even 0:23:24.359 --> 0:23:28.080 more clear burden on constitutional rights when applied to these 0:23:28.160 --> 0:23:31.000 kinds of novel, precisely because then that interferes with adults 0:23:31.040 --> 0:23:34.800 ability to privately look at those books, as well as 0:23:34.800 --> 0:23:37.560 the miners built in this age where you can get 0:23:38.200 --> 0:23:41.320 almost anything on the internet, why do you think the 0:23:41.400 --> 0:23:46.639 request to remove materials from schools or libraries hit a 0:23:46.680 --> 0:23:50.320 record since they've been counting it since two thousand one? 0:23:50.520 --> 0:23:55.360 Is it politics? So let me broaden this question. Given 0:23:55.480 --> 0:23:58.600 that it's so easy to get things on the internet, 0:23:58.880 --> 0:24:02.680 you might imagine a people would say, what's the point 0:24:02.680 --> 0:24:05.919 of removing it from the library. It's still so easily accessible. 0:24:06.359 --> 0:24:09.520