1 00:00:03,160 --> 00:00:07,960 Speaker 1: This is Bloombird Law with June Brussel from Bloomberg Radio. 2 00:00:09,200 --> 00:00:13,120 Speaker 1: The Supreme Court term already promises to be another consequential 3 00:00:13,240 --> 00:00:18,400 Speaker 1: and controversial one, with arguments completed in cases on affirmative action, 4 00:00:18,760 --> 00:00:22,560 Speaker 1: a clash between lgbt Q rights and religious rights, and 5 00:00:22,600 --> 00:00:26,319 Speaker 1: a theory that could upend elections, and the Justices have 6 00:00:26,400 --> 00:00:31,200 Speaker 1: added more significant cases to their docket for several will 7 00:00:31,240 --> 00:00:34,680 Speaker 1: put them in the middle of heated political debates. Perhaps 8 00:00:34,760 --> 00:00:38,839 Speaker 1: the most high profile cases over President Biden's student loan 9 00:00:38,920 --> 00:00:43,760 Speaker 1: forgiveness program. Republican special interest and elected officials soon to 10 00:00:43,800 --> 00:00:48,000 Speaker 1: deny this relief even for their own constituents. But I'm 11 00:00:48,040 --> 00:00:51,879 Speaker 1: completely confident my plan is legal right now, it's our 12 00:00:52,000 --> 00:00:55,560 Speaker 1: whole Because of these lawsuits, six Republican led states and 13 00:00:55,640 --> 00:00:59,880 Speaker 1: two borrowers are challenging the president's authority to pass the plan, 14 00:01:00,320 --> 00:01:03,600 Speaker 1: which would forgive up to twenty dollars in federal student 15 00:01:03,720 --> 00:01:06,720 Speaker 1: loans for borrowers earning less than a hundred and twenty 16 00:01:06,800 --> 00:01:09,959 Speaker 1: five thousand dollars a year at an estimated cost of 17 00:01:10,080 --> 00:01:13,200 Speaker 1: four hundred billion dollars. Joining me to preview the case 18 00:01:13,360 --> 00:01:17,039 Speaker 1: is coming up next year. Is constitutional law Professor Harold 19 00:01:17,080 --> 00:01:20,720 Speaker 1: Crent of the Chicago Kent College of Law. How are 20 00:01:20,720 --> 00:01:25,039 Speaker 1: the student loan cases a showdown over presidential power? I 21 00:01:25,080 --> 00:01:27,759 Speaker 1: don't think so. First of all, there's an incredibly interesting 22 00:01:27,800 --> 00:01:31,240 Speaker 1: standing question here is that who can complain that the 23 00:01:31,280 --> 00:01:34,360 Speaker 1: fact of the federal government is being generous with its money. 24 00:01:34,520 --> 00:01:38,800 Speaker 1: If a student didn't get the benefit of the cancelation, 25 00:01:39,280 --> 00:01:42,559 Speaker 1: they probably don't have standing. States who sued can't really 26 00:01:42,560 --> 00:01:48,480 Speaker 1: show any impact on their finances. The only conceivable group 27 00:01:48,560 --> 00:01:53,120 Speaker 1: that might have standing is the individuals who process federal loans. 28 00:01:53,120 --> 00:01:57,160 Speaker 1: They may lose some business arguably because of this. But 29 00:01:57,280 --> 00:02:00,760 Speaker 1: it's just very difficult to see how the courts, and 30 00:02:00,840 --> 00:02:03,600 Speaker 1: indeed the Supreme Court could have taken this case given 31 00:02:03,640 --> 00:02:06,160 Speaker 1: the fact that there's so difficult to show standing in 32 00:02:06,200 --> 00:02:08,520 Speaker 1: the case. And it's even more remarkable that the court 33 00:02:08,560 --> 00:02:11,600 Speaker 1: took the case before the Court of Appeals had decided it. 34 00:02:11,639 --> 00:02:15,000 Speaker 1: Maybe because it's so important to the economy, but usually 35 00:02:15,240 --> 00:02:17,840 Speaker 1: they allowed the Court of Appeals to venti latent hear 36 00:02:17,880 --> 00:02:21,240 Speaker 1: the cases. And there were cases filed in several courts 37 00:02:21,240 --> 00:02:23,080 Speaker 1: of the appeals and the Supreme Court is not going 38 00:02:23,120 --> 00:02:25,639 Speaker 1: to get the benefit of those decisions. So that's sort 39 00:02:25,680 --> 00:02:29,919 Speaker 1: of the procedural issue that's quite unique in the case. 40 00:02:30,080 --> 00:02:33,079 Speaker 1: On the merits too, question of interpreting the statute. In 41 00:02:33,400 --> 00:02:35,480 Speaker 1: this case, it has to do with the Higher Education 42 00:02:35,520 --> 00:02:39,400 Speaker 1: Relief Opportunity Act that allows these kind of cancelations in 43 00:02:39,480 --> 00:02:43,800 Speaker 1: an emergency, and how do you define emergency? That act 44 00:02:43,960 --> 00:02:47,639 Speaker 1: was passed right after nine eleven. Understand that emergency, understand 45 00:02:47,639 --> 00:02:51,600 Speaker 1: COVID emergency. But by the time the President invoked the statute, 46 00:02:51,760 --> 00:02:54,800 Speaker 1: the COVID emergency was not totally passed, but it was 47 00:02:54,880 --> 00:02:58,120 Speaker 1: just lingering. And obviously we've had the vaccines, and so 48 00:02:58,240 --> 00:03:01,519 Speaker 1: the question after the vaccines is are we stowing an emergency? 49 00:03:01,760 --> 00:03:05,160 Speaker 1: And does the statute therefore give the president the power 50 00:03:05,200 --> 00:03:09,360 Speaker 1: to cancel the debt or is this really an unauthorized action. 51 00:03:10,000 --> 00:03:13,639 Speaker 1: The first case they took was from Republican states. Then 52 00:03:13,680 --> 00:03:17,400 Speaker 1: they added another case from two borrowers who say they 53 00:03:17,400 --> 00:03:22,000 Speaker 1: were unfairly excluded from the full scope of the program. 54 00:03:22,080 --> 00:03:25,239 Speaker 1: Does that tell you that the justices are searching for 55 00:03:25,520 --> 00:03:29,600 Speaker 1: standing here? I think someone is uncomfortable standing and they 56 00:03:29,639 --> 00:03:31,959 Speaker 1: should be. I mean, this is a very important issue 57 00:03:32,000 --> 00:03:35,640 Speaker 1: with a huge impact on the economy. Understood and indeed 58 00:03:35,800 --> 00:03:38,200 Speaker 1: the President is not on the most firm footing here 59 00:03:38,520 --> 00:03:42,080 Speaker 1: in taking the action that he did. But again the 60 00:03:42,160 --> 00:03:46,080 Speaker 1: issue is who really has standing to complain when the government, 61 00:03:46,360 --> 00:03:51,680 Speaker 1: perhaps fairly or unfairly, decides to cancel federal debt. Again, 62 00:03:51,720 --> 00:03:55,040 Speaker 1: the only narrow plaintiff that I can envision is the 63 00:03:55,160 --> 00:03:58,480 Speaker 1: processor of federal loans, if they could show that they 64 00:03:58,600 --> 00:04:02,600 Speaker 1: get less business because of the cancelation. Is a processor 65 00:04:02,680 --> 00:04:07,800 Speaker 1: involved in the Republican State suit, there is one entity 66 00:04:07,880 --> 00:04:11,680 Speaker 1: which arguably is a processor, but they haven't even demonstrated 67 00:04:11,720 --> 00:04:15,040 Speaker 1: that in the papers yet. So there is a possible 68 00:04:15,080 --> 00:04:18,479 Speaker 1: plaintiff in that case, but it's unclear in terms of 69 00:04:18,480 --> 00:04:21,320 Speaker 1: the pleading whether or not they would have any kind 70 00:04:21,320 --> 00:04:25,320 Speaker 1: of harm. The Supreme Court has seemed hostile to President 71 00:04:25,400 --> 00:04:29,599 Speaker 1: Biden's initiatives during the pandemic, and I'm wondering if that 72 00:04:29,800 --> 00:04:33,360 Speaker 1: hostility will carry through to this. Oh, I think so. 73 00:04:33,440 --> 00:04:35,520 Speaker 1: I mean, I think if they reached the merits, I'm 74 00:04:35,520 --> 00:04:39,640 Speaker 1: well convinced that the Supreme Court will rule that the 75 00:04:39,720 --> 00:04:43,560 Speaker 1: congressional legislation didn't clearly give the president the power to 76 00:04:43,640 --> 00:04:46,680 Speaker 1: cancel debt. In this kind of context, they could use 77 00:04:46,880 --> 00:04:49,040 Speaker 1: one of several mechanisms do that. That could read the 78 00:04:49,040 --> 00:04:52,800 Speaker 1: statute narrowly, they could redefine emergency, or they could use 79 00:04:52,920 --> 00:04:55,479 Speaker 1: what it's called the major questions doctor and say that 80 00:04:55,720 --> 00:04:59,480 Speaker 1: Congress can't leave the administration that much room when the 81 00:04:59,600 --> 00:05:03,159 Speaker 1: impact is so large, it has to speak with greater specificity. 82 00:05:03,320 --> 00:05:05,400 Speaker 1: So one of those grounds I think the Court could 83 00:05:05,400 --> 00:05:09,000 Speaker 1: rely upon in ruling against the Biden administration, but it's 84 00:05:09,000 --> 00:05:11,839 Speaker 1: going to be difficult for them to find a real 85 00:05:11,920 --> 00:05:15,039 Speaker 1: case to open on, so we'll have to stay tuned. 86 00:05:15,400 --> 00:05:17,440 Speaker 1: I mean, there could be a lot of reasons why 87 00:05:17,839 --> 00:05:21,440 Speaker 1: the Justice has kept the plan on hold during the 88 00:05:21,440 --> 00:05:25,160 Speaker 1: appellate process here, but is one of the reasons that 89 00:05:25,240 --> 00:05:29,680 Speaker 1: they're considering provoking it. Absolutely. I think the Court intervened 90 00:05:29,720 --> 00:05:33,320 Speaker 1: early because they recognize that if the Biden administration had 91 00:05:33,360 --> 00:05:35,520 Speaker 1: processed this, there would be a huge impact on the 92 00:05:35,560 --> 00:05:40,480 Speaker 1: economy and would be very difficult to unwind the cancelations 93 00:05:40,480 --> 00:05:43,719 Speaker 1: and a fair and orderly process. So that would suggest that, 94 00:05:44,080 --> 00:05:47,080 Speaker 1: as you mentioned that kind of hostility to the merits 95 00:05:47,160 --> 00:05:50,640 Speaker 1: of the Biden administration cancelation of the student that there's 96 00:05:50,680 --> 00:05:55,200 Speaker 1: another case coming up next month that maybe precedent setting 97 00:05:55,800 --> 00:05:59,760 Speaker 1: Turkey state owned Hulk Bank is seeking dismissal of criminal 98 00:06:00,080 --> 00:06:04,479 Speaker 1: larges that it helped around evade economic sanctions by laundering 99 00:06:04,560 --> 00:06:08,320 Speaker 1: billions of dollars in oil and gas revenues. So the 100 00:06:08,360 --> 00:06:13,200 Speaker 1: Turkish Bake evidently helped launder somewhere close to twenty billion 101 00:06:13,320 --> 00:06:18,440 Speaker 1: dollars of Iranian oil assets in contravention of our laws 102 00:06:18,480 --> 00:06:22,080 Speaker 1: against doing business with Iran, and so criminal charges were 103 00:06:22,080 --> 00:06:24,919 Speaker 1: brought against the bank here in the United States because 104 00:06:24,960 --> 00:06:28,720 Speaker 1: some of the laundering took place within the US financial system. 105 00:06:28,960 --> 00:06:32,840 Speaker 1: There has never been a criminal action brought against foreign 106 00:06:32,920 --> 00:06:35,560 Speaker 1: state owned enterprise in our history, and this was really 107 00:06:35,600 --> 00:06:39,000 Speaker 1: the first one. And the second circuit held that there's 108 00:06:39,040 --> 00:06:43,680 Speaker 1: no law immunizing a state owned bank for its commercial activities. 109 00:06:43,760 --> 00:06:46,240 Speaker 1: The way there would be to protect the state diplomat, 110 00:06:46,320 --> 00:06:49,120 Speaker 1: and so the criminal charges could go forward. So this 111 00:06:49,200 --> 00:06:52,400 Speaker 1: is really unprecedented and it's a major change which we 112 00:06:52,520 --> 00:06:57,360 Speaker 1: has ripple effect around the world because usually retreats foreign governments, 113 00:06:57,480 --> 00:07:00,000 Speaker 1: whether they're doing commercial activities or not in a very 114 00:07:00,000 --> 00:07:02,320 Speaker 1: a special way. We have a whole statute with the 115 00:07:02,320 --> 00:07:05,960 Speaker 1: Federal Sovereign Immunities Act, which limits when you can even 116 00:07:06,040 --> 00:07:09,480 Speaker 1: sue stain owned enterprises, but This would be saying that, well, 117 00:07:09,640 --> 00:07:12,920 Speaker 1: Congress didn't say you can't have a criminal action against 118 00:07:12,920 --> 00:07:15,080 Speaker 1: a state owned enterprise, and so now we have the 119 00:07:15,120 --> 00:07:17,880 Speaker 1: first one, and we'll see if the Supreme Court, let's 120 00:07:17,880 --> 00:07:20,600 Speaker 1: just stand. My guess is that it will. But who 121 00:07:20,600 --> 00:07:25,040 Speaker 1: knows what's Turkey's argument for why the bank shouldn't be prosecuted. 122 00:07:25,240 --> 00:07:27,800 Speaker 1: First of all, it's unprecedented that there has never been 123 00:07:27,960 --> 00:07:32,560 Speaker 1: this kind of action, and they're extrapolating from the diplomatic precedents, 124 00:07:32,560 --> 00:07:37,040 Speaker 1: would suggest that there is diplomatic immunity for its officers, 125 00:07:37,080 --> 00:07:40,480 Speaker 1: and Congress has seen to fit that we cannot prosecute 126 00:07:40,640 --> 00:07:44,440 Speaker 1: diplomats for ordinary crimes. And so they're suggesting that the 127 00:07:44,560 --> 00:07:47,880 Speaker 1: danger would be that the state owned enterprise. You basically 128 00:07:48,040 --> 00:07:51,440 Speaker 1: end up limiting the kind of functional immunity that's given 129 00:07:51,480 --> 00:07:56,040 Speaker 1: to the members of different countries who may be directors 130 00:07:56,080 --> 00:07:59,440 Speaker 1: on the bank or maybe their relatives are working in 131 00:07:59,480 --> 00:08:02,480 Speaker 1: the bank, and so this would chip away at that 132 00:08:02,560 --> 00:08:05,680 Speaker 1: kind of immunity. Now the government says, look, it's a 133 00:08:05,680 --> 00:08:09,280 Speaker 1: commercial activity, and just the way under the Photo Sovereigns 134 00:08:09,280 --> 00:08:12,840 Speaker 1: Immunity Act, you can be sued for commercial activities if 135 00:08:12,880 --> 00:08:16,520 Speaker 1: those very same commercial activities give rise to criminal charges, 136 00:08:16,760 --> 00:08:18,880 Speaker 1: so be it. And I think the government has got 137 00:08:18,880 --> 00:08:22,800 Speaker 1: a pretty strong argument here, even though it's never happened before. 138 00:08:22,920 --> 00:08:27,520 Speaker 1: Sometimes if Congress just didn't address it, and the prosecutors 139 00:08:27,520 --> 00:08:29,320 Speaker 1: have moved in and sought to use this as a 140 00:08:29,360 --> 00:08:31,520 Speaker 1: lever against the Turkish Bank, and I think this may 141 00:08:31,520 --> 00:08:34,560 Speaker 1: be precedent setting. Why do you think the Supreme Court 142 00:08:35,040 --> 00:08:39,080 Speaker 1: is going to allow the prosecution to go forward? Congress 143 00:08:39,280 --> 00:08:43,719 Speaker 1: didn't preclude it, and in the absence of congressional statute 144 00:08:43,840 --> 00:08:46,560 Speaker 1: from the Court would have to rely upon some other 145 00:08:46,640 --> 00:08:51,160 Speaker 1: kind of analogy, such as diplomatic community to stop the prosecution, 146 00:08:51,240 --> 00:08:54,880 Speaker 1: and to stop the prosecution of a bank for its 147 00:08:54,880 --> 00:08:59,920 Speaker 1: commercial activities seems pretty far stretch from stopping a prosecution 148 00:09:00,120 --> 00:09:02,920 Speaker 1: from a diplomat who has been accused of a hidden 149 00:09:03,000 --> 00:09:06,000 Speaker 1: run or some other criminal offense. That is a really 150 00:09:06,120 --> 00:09:10,320 Speaker 1: interesting criminal case coming up involving the sixth Amendment right 151 00:09:10,440 --> 00:09:14,120 Speaker 1: to confront witnesses. Adam Samia was on trial for murder 152 00:09:14,160 --> 00:09:18,680 Speaker 1: with two other defendants, and the prosecution introduced a redacted 153 00:09:18,760 --> 00:09:22,800 Speaker 1: confession of one of the other defendants that identified Samia 154 00:09:23,040 --> 00:09:25,880 Speaker 1: as the one who pulled the trigger, and he was convicted. 155 00:09:26,320 --> 00:09:29,760 Speaker 1: So there's been settle precedent that we have a confrontation 156 00:09:29,800 --> 00:09:33,080 Speaker 1: cause in our constitution and that individuals who are on 157 00:09:33,120 --> 00:09:36,080 Speaker 1: trial have the right to confront their accusers. This is 158 00:09:36,280 --> 00:09:40,080 Speaker 1: difficult to apply when two people are on trial for 159 00:09:40,160 --> 00:09:43,520 Speaker 1: the same offense, and the court has earlier held that 160 00:09:43,800 --> 00:09:47,520 Speaker 1: a confession from a co defendant cannot be introduced at 161 00:09:47,679 --> 00:09:51,360 Speaker 1: trial because in essence, it would deprive one defendant of 162 00:09:51,400 --> 00:09:54,640 Speaker 1: the right to confront the co defendant who made the confession. 163 00:09:54,800 --> 00:09:58,880 Speaker 1: So this case is in the middle. Because the confession 164 00:09:59,160 --> 00:10:02,840 Speaker 1: didn't include the name of the criminal defendant. The co 165 00:10:02,920 --> 00:10:06,960 Speaker 1: defendant basically confessed and the name was bleeped out, and 166 00:10:07,000 --> 00:10:10,560 Speaker 1: the argument is, which I think is a relatively strong 167 00:10:10,640 --> 00:10:13,959 Speaker 1: one from the criminal defendant, was that even though his 168 00:10:14,160 --> 00:10:18,920 Speaker 1: name wasn't used, the confession is incriminating and therefore his 169 00:10:19,080 --> 00:10:23,960 Speaker 1: rights to confront that witness are jeopardized. Obviously, if you're 170 00:10:23,960 --> 00:10:27,000 Speaker 1: going to join trial, you can't confront the co defendant 171 00:10:27,080 --> 00:10:29,520 Speaker 1: as a witness. That's the difficulty. So the court will 172 00:10:29,559 --> 00:10:33,280 Speaker 1: have to wrestle with to what extent a statement from 173 00:10:33,280 --> 00:10:37,040 Speaker 1: a co defendant is incriminating to the point where the 174 00:10:37,200 --> 00:10:41,000 Speaker 1: rights to confrontation would be jeopardized. So I think that 175 00:10:41,080 --> 00:10:45,360 Speaker 1: the Court will split differently than the traditional conservative liberal 176 00:10:45,400 --> 00:10:47,760 Speaker 1: block in this case. And the question would be how 177 00:10:47,880 --> 00:10:51,320 Speaker 1: robust our confrontation clause they want to preserve. And my 178 00:10:51,440 --> 00:10:53,960 Speaker 1: guess is that there will be some support for the 179 00:10:54,000 --> 00:10:56,440 Speaker 1: criminal defendant in the case. Do you think Justice scores 180 00:10:56,559 --> 00:10:59,560 Speaker 1: it will likely vote with the liberals here. I think 181 00:10:59,600 --> 00:11:03,800 Speaker 1: Justice in particular will be sympathetic to the confrontation clause 182 00:11:04,000 --> 00:11:07,840 Speaker 1: in this case, so you'll see some unusual votes. How 183 00:11:07,880 --> 00:11:10,800 Speaker 1: you're going to stay with me? And coming up, Professor 184 00:11:10,840 --> 00:11:15,440 Speaker 1: Harold cret and I will discuss more cases, including one 185 00:11:15,559 --> 00:11:20,280 Speaker 1: that could be a reckoning for social media companies. Big 186 00:11:20,320 --> 00:11:23,440 Speaker 1: Tech faces a reckoning at the Supreme Court next year, 187 00:11:23,720 --> 00:11:27,720 Speaker 1: as the justices decided case challenging the legal shield for 188 00:11:27,800 --> 00:11:32,080 Speaker 1: social media platforms in section to thirty of the Communications 189 00:11:32,160 --> 00:11:35,199 Speaker 1: Decency Act. The question is whether some of the world's 190 00:11:35,240 --> 00:11:39,360 Speaker 1: most powerful companies should be protected as neutral forums for 191 00:11:39,480 --> 00:11:43,800 Speaker 1: speech or held accountable for their content, and the Justice's 192 00:11:43,880 --> 00:11:46,560 Speaker 1: decision to hear the case puts them in the middle 193 00:11:46,600 --> 00:11:50,560 Speaker 1: of the political debate. Jack Dorsey, then CEO of Twitter, 194 00:11:50,960 --> 00:11:55,080 Speaker 1: testified along with the CEOs of Facebook and Google about 195 00:11:55,120 --> 00:11:58,760 Speaker 1: the importance of Section two thirty on Capitol Hill in 196 00:11:58,840 --> 00:12:04,000 Speaker 1: October of twenty twenty and then again in March. We 197 00:12:04,040 --> 00:12:06,920 Speaker 1: believe in free expression, We believe in free debate and 198 00:12:07,000 --> 00:12:09,719 Speaker 1: conversation to find the truth. At the same time, we 199 00:12:09,840 --> 00:12:12,199 Speaker 1: must balance that with our desire to for our service 200 00:12:12,280 --> 00:12:15,840 Speaker 1: not to be used to so confusion, division, or destruction. 201 00:12:17,280 --> 00:12:20,600 Speaker 1: Removing Section to thirty will remove speech from the Internet. 202 00:12:20,840 --> 00:12:24,880 Speaker 1: The two cases against YouTube and Twitter involved lawsuits brought 203 00:12:24,920 --> 00:12:29,199 Speaker 1: by the families of victims killed in overseas terrorist attacks. 204 00:12:29,240 --> 00:12:32,040 Speaker 1: I've been talking to Professor Harold Krent of the Chicago 205 00:12:32,160 --> 00:12:35,439 Speaker 1: Kent College of Law. How give us some background on 206 00:12:35,520 --> 00:12:41,439 Speaker 1: Section to thirty. So the Communication Act provides immunity for 207 00:12:41,480 --> 00:12:45,160 Speaker 1: an online platform so they won't be sued for offensive 208 00:12:45,200 --> 00:12:48,720 Speaker 1: material that is posted or published on their site. And 209 00:12:48,840 --> 00:12:55,160 Speaker 1: this is a key defense for entity such as Facebook 210 00:12:55,400 --> 00:12:59,360 Speaker 1: and YouTube and Twitter, so that the companies will not 211 00:12:59,480 --> 00:13:03,720 Speaker 1: be sued for any kind of defamatory or other kinds 212 00:13:03,720 --> 00:13:07,840 Speaker 1: of objectionable content that's published. But in these cases there's 213 00:13:07,880 --> 00:13:12,839 Speaker 1: a twist. The plaintiffs have said that because these entities, 214 00:13:12,920 --> 00:13:18,480 Speaker 1: these online platforms use algorithms to suggest what viewers may 215 00:13:18,559 --> 00:13:22,120 Speaker 1: want to see that promote specific content as viewers that 216 00:13:22,320 --> 00:13:27,480 Speaker 1: the algorithm itself basically makes them forfeit their neutrality and 217 00:13:27,559 --> 00:13:30,360 Speaker 1: allows them to be sued. So, given there were no 218 00:13:30,440 --> 00:13:33,960 Speaker 1: algorithms when the Communications Decency Act wasn't acted, and so 219 00:13:34,000 --> 00:13:37,560 Speaker 1: now that all of these companies rely upon algorithms to 220 00:13:37,679 --> 00:13:40,559 Speaker 1: promote and say, you might like this story, look at 221 00:13:40,600 --> 00:13:43,560 Speaker 1: this movie. It looks like it's something you would like that. 222 00:13:43,640 --> 00:13:47,440 Speaker 1: This is now departing from the kind of impartiality that 223 00:13:47,480 --> 00:13:51,440 Speaker 1: the Communications Decency Act would require and therefore would allow 224 00:13:51,679 --> 00:13:55,160 Speaker 1: these entities to be sued. This would cause havoc in 225 00:13:55,600 --> 00:13:59,800 Speaker 1: online platforms because they rely upon these algorithms. And yet, 226 00:14:00,559 --> 00:14:03,400 Speaker 1: looking at the Communications Decency Act, I think this is 227 00:14:03,440 --> 00:14:05,840 Speaker 1: going to be a close case and indeed would cause 228 00:14:05,960 --> 00:14:09,560 Speaker 1: a huge disruption in terms of how entities such as 229 00:14:09,600 --> 00:14:13,920 Speaker 1: Twitter and YouTube do business. Is this about the preliminary 230 00:14:14,160 --> 00:14:18,280 Speaker 1: question of whether these companies can even be sued, rather 231 00:14:18,360 --> 00:14:22,720 Speaker 1: than the merits of whether YouTube and Twitter are responsible 232 00:14:22,840 --> 00:14:27,840 Speaker 1: for terrorist attacks overseas. Yeah, if immunity is lost, then 233 00:14:28,200 --> 00:14:32,720 Speaker 1: the entities will have to be in court defending themselves, 234 00:14:32,760 --> 00:14:35,400 Speaker 1: and that, of course is disruptive in itself. But then 235 00:14:35,480 --> 00:14:38,280 Speaker 1: the doctrines will have to be sort of worked out 236 00:14:38,320 --> 00:14:41,560 Speaker 1: about when are you aiding an embetting terrorism? Are do 237 00:14:41,560 --> 00:14:44,160 Speaker 1: you aid in the bet terrorism by having a how 238 00:14:44,200 --> 00:14:47,800 Speaker 1: to manual published on your side, or if you're allowing 239 00:14:47,880 --> 00:14:53,480 Speaker 1: someone to give inspirational talks exhorting the terrorists? Ideal is 240 00:14:53,520 --> 00:14:56,760 Speaker 1: that aiding an embedding terrorism. So that would be on 241 00:14:56,840 --> 00:14:59,720 Speaker 1: the merits of case. But obviously the company is one 242 00:14:59,800 --> 00:15:03,480 Speaker 1: of boyd the mailors. By seeking the immunity that section 243 00:15:03,520 --> 00:15:08,000 Speaker 1: to thirties seemingly confers. The justices are stepping into the 244 00:15:08,080 --> 00:15:13,320 Speaker 1: political hotbed that section has become. Musk has put Section 245 00:15:13,320 --> 00:15:16,640 Speaker 1: to thirty into the headlines if nothing else did, and 246 00:15:16,680 --> 00:15:19,120 Speaker 1: so did President Trump, because all of them, the question 247 00:15:19,200 --> 00:15:23,200 Speaker 1: is what kind of neutrality must these providers adhere to? 248 00:15:23,480 --> 00:15:27,520 Speaker 1: And so the question is, well this case prompt Congress 249 00:15:27,600 --> 00:15:30,800 Speaker 1: to act. Congress has not wanted to touch it during 250 00:15:30,840 --> 00:15:34,520 Speaker 1: the Trump controversy, and now we have the Musk controversy, 251 00:15:34,600 --> 00:15:38,040 Speaker 1: and still Congress has not made any kind of serious 252 00:15:38,120 --> 00:15:41,400 Speaker 1: moves to revisit Section to thirty. Maybe the Supreme Court 253 00:15:41,440 --> 00:15:44,640 Speaker 1: case will. The Ninth Circuit sided with Google but said 254 00:15:44,680 --> 00:15:48,120 Speaker 1: the case against Twitter could go forward what was the 255 00:15:48,200 --> 00:15:53,000 Speaker 1: difference between those two cases. The Twitter case included a 256 00:15:53,160 --> 00:15:57,200 Speaker 1: claim based upon the Anti Terrorism Act, which was not 257 00:15:57,560 --> 00:16:01,320 Speaker 1: in the Google case itself, and so the issue would 258 00:16:01,320 --> 00:16:06,920 Speaker 1: be whether the Anti Terrorism Act itself circumvance the Section 259 00:16:06,960 --> 00:16:10,240 Speaker 1: two thirty shield, and that's the claim that would go 260 00:16:10,320 --> 00:16:14,360 Speaker 1: forward in the In the second case, Justice Clarence Thomas 261 00:16:14,440 --> 00:16:19,880 Speaker 1: has suggested treating social media companies like public utilities. Have 262 00:16:20,040 --> 00:16:22,720 Speaker 1: any of the other justices given any hint as to 263 00:16:23,400 --> 00:16:26,880 Speaker 1: their position here, well, I think that the Court couldn't 264 00:16:26,880 --> 00:16:30,160 Speaker 1: do that unless Congress so indicated. Right, the Court has 265 00:16:30,200 --> 00:16:35,200 Speaker 1: no power to carve off these industries and makes special 266 00:16:35,320 --> 00:16:38,120 Speaker 1: rules for them. But I do think that what Justice 267 00:16:38,120 --> 00:16:42,360 Speaker 1: Thomas was suggesting is that Congress really has to overhaul 268 00:16:42,720 --> 00:16:46,440 Speaker 1: the process and decide what kind of checks and balances 269 00:16:46,680 --> 00:16:52,360 Speaker 1: to impose. Because it is true that Twitter and Facebook are, 270 00:16:52,920 --> 00:16:56,680 Speaker 1: in a sense the new kind of utilities. There are 271 00:16:56,720 --> 00:17:02,040 Speaker 1: requests for the Supreme Court to take related social media laws. 272 00:17:02,080 --> 00:17:04,960 Speaker 1: There are social media laws in Texas and Florida that 273 00:17:05,960 --> 00:17:09,520 Speaker 1: bar basically social media companies with more than fifty million 274 00:17:09,720 --> 00:17:14,000 Speaker 1: viewers from discriminating on the basis of viewpoint. I don't 275 00:17:14,000 --> 00:17:15,879 Speaker 1: know how the social media companies would be able to 276 00:17:15,880 --> 00:17:18,359 Speaker 1: deal with that. Do you think the Court should take 277 00:17:18,400 --> 00:17:20,879 Speaker 1: that up as well? I think the Court will be 278 00:17:21,000 --> 00:17:26,760 Speaker 1: forced to take up the issue of viewpoint discrimination relatively soon. 279 00:17:27,000 --> 00:17:30,520 Speaker 1: Obviously it's not indicated in the Section to thirty challenge 280 00:17:30,600 --> 00:17:34,879 Speaker 1: before the Court this year, but because of states such 281 00:17:34,880 --> 00:17:40,080 Speaker 1: as Texas trying to regulate what Twitter and Facebook can do, 282 00:17:40,400 --> 00:17:43,000 Speaker 1: I think the Court will within a year or two 283 00:17:43,240 --> 00:17:47,760 Speaker 1: take up the question as to what kind of viewpoint 284 00:17:47,800 --> 00:17:52,159 Speaker 1: neutrality is consistent to impose upon a private entity. In 285 00:17:52,200 --> 00:17:56,400 Speaker 1: recent years, the Justices have shown an interest in tribal issues. 286 00:17:56,840 --> 00:17:59,920 Speaker 1: They've already heard a case over the Indian Child Wealth 287 00:18:00,000 --> 00:18:02,760 Speaker 1: Fair Act last month, and they're going to hear a 288 00:18:02,880 --> 00:18:08,080 Speaker 1: case in three over the fierce competition for Colorado River 289 00:18:08,240 --> 00:18:12,359 Speaker 1: water rights. It pits the Navajo Nation against a slew 290 00:18:12,400 --> 00:18:18,680 Speaker 1: of opponents, the federal government, Arizona, Nevada, Colorado, and regional 291 00:18:18,720 --> 00:18:23,199 Speaker 1: water management authorities. You know, the Colorado River supplies the 292 00:18:23,240 --> 00:18:26,320 Speaker 1: water for about forty million American households, and so it's 293 00:18:26,359 --> 00:18:30,160 Speaker 1: a very contentious issue about how to allocate water rights, 294 00:18:30,160 --> 00:18:32,280 Speaker 1: and the states have been involved in the federal government 295 00:18:32,320 --> 00:18:34,800 Speaker 1: has been involved with it, but there is a Supreme 296 00:18:34,880 --> 00:18:39,879 Speaker 1: Court case that recognized implicitly anyway that the Navjo Nation 297 00:18:40,160 --> 00:18:43,119 Speaker 1: would due a certain amount of water because of the 298 00:18:43,200 --> 00:18:46,440 Speaker 1: treaty rights that existed years ago. So as water is 299 00:18:46,520 --> 00:18:49,919 Speaker 1: becoming more scarce and as the demand for water is increasing, 300 00:18:50,000 --> 00:18:52,520 Speaker 1: the Navajo Nation says, no, we're not going to participate 301 00:18:52,600 --> 00:18:56,480 Speaker 1: any kind of restructuring of rights. We want what was 302 00:18:56,600 --> 00:19:00,359 Speaker 1: promised to us. And that's what the court below held. 303 00:19:00,440 --> 00:19:02,800 Speaker 1: So that's seen up the issue for the Supreme Court. 304 00:19:03,400 --> 00:19:05,600 Speaker 1: And the Court has been sensitive to the rights of 305 00:19:05,720 --> 00:19:09,359 Speaker 1: Native Americans in recent terms, and I think Justice Course 306 00:19:09,400 --> 00:19:12,199 Speaker 1: such is partially responsible this. He's been very interested in 307 00:19:12,560 --> 00:19:14,960 Speaker 1: Native American rights, and I think other members of the 308 00:19:15,000 --> 00:19:18,879 Speaker 1: Court are becoming increasingly interested, as you suggested, And if 309 00:19:18,960 --> 00:19:22,119 Speaker 1: you understand that a treaty is a treaty, then you 310 00:19:22,240 --> 00:19:25,119 Speaker 1: end up being much more sympathetic to the Navajo nations 311 00:19:25,200 --> 00:19:28,440 Speaker 1: claim here, which is what the Nice Circuit fact found. 312 00:19:28,520 --> 00:19:32,119 Speaker 1: The US has a fiduciary duty to protect the interests 313 00:19:32,160 --> 00:19:34,840 Speaker 1: that it at least implicitly promised to the Navajo and 314 00:19:34,880 --> 00:19:38,520 Speaker 1: treaties generations to go. So the Court has manfested a 315 00:19:38,560 --> 00:19:42,320 Speaker 1: renewed interest in how to understand the separate sovereigns of 316 00:19:42,359 --> 00:19:45,119 Speaker 1: the Indian tribes. The court is going to consider a 317 00:19:45,160 --> 00:19:51,560 Speaker 1: federal law that could potentially criminalize immigration advice and ensnare preachers, lawyers, 318 00:19:51,720 --> 00:19:56,240 Speaker 1: and even grandparents. And the Ninth Circuits struck down the law. Yeah, 319 00:19:56,280 --> 00:19:59,719 Speaker 1: the Ninth Circuit held that this law, which prohibits been 320 00:20:00,040 --> 00:20:03,800 Speaker 1: urging the illegal immigration, there's a violation the First Amendment 321 00:20:03,840 --> 00:20:07,040 Speaker 1: because it would apply in too many contexts. It would 322 00:20:07,080 --> 00:20:11,000 Speaker 1: apply when someone, according to the Court, might be criticizing 323 00:20:11,000 --> 00:20:14,959 Speaker 1: immigration laws. That might apply when someone is just advocating 324 00:20:15,000 --> 00:20:18,320 Speaker 1: for the best way to get asylum in the United States. 325 00:20:18,359 --> 00:20:21,280 Speaker 1: And so it was just overbroad. And I think that 326 00:20:21,359 --> 00:20:24,560 Speaker 1: the Ninth Circuit sort of went too quickly over one 327 00:20:24,600 --> 00:20:26,840 Speaker 1: part of the statute, because one part of the statute 328 00:20:26,960 --> 00:20:32,199 Speaker 1: says that it's only a crime to advocate for illegal immigration. 329 00:20:32,440 --> 00:20:34,159 Speaker 1: First of all, you have to know it's illegal. The 330 00:20:34,200 --> 00:20:35,800 Speaker 1: second of all, you have to do it for private 331 00:20:35,920 --> 00:20:39,720 Speaker 1: financial gain. And I think the private financial gain really 332 00:20:39,800 --> 00:20:43,520 Speaker 1: limits the number of contexts in which this statute can 333 00:20:43,560 --> 00:20:48,160 Speaker 1: be used. Problematically, and historically the process has only been 334 00:20:48,280 --> 00:20:52,679 Speaker 1: used for individuals who solicit illegal immigration. In the case itself, 335 00:20:52,720 --> 00:20:56,560 Speaker 1: there was someone who made up a whole business by 336 00:20:56,760 --> 00:20:59,520 Speaker 1: saying that if you pay me money, I'll try to 337 00:20:59,640 --> 00:21:01,960 Speaker 1: ensure or that you can be adopted by families in 338 00:21:02,000 --> 00:21:06,080 Speaker 1: the United States. That's private gain. And he knew what 339 00:21:06,119 --> 00:21:08,680 Speaker 1: he was doing was toldly illegal and there is no 340 00:21:08,960 --> 00:21:13,959 Speaker 1: route to asylum through being adopted wholesale by the US family. 341 00:21:14,200 --> 00:21:16,480 Speaker 1: And I think the law can be used as long 342 00:21:16,520 --> 00:21:19,800 Speaker 1: as you say you're kind of soliciting people to violate 343 00:21:19,920 --> 00:21:22,560 Speaker 1: the law, and the typical solicitation case and if you're 344 00:21:22,600 --> 00:21:25,080 Speaker 1: doing stuff for private financial game those there are two 345 00:21:25,119 --> 00:21:27,520 Speaker 1: ways you can limit the statute in a way that 346 00:21:27,640 --> 00:21:31,000 Speaker 1: avoids the overbreadth that the Ninth Circuit was so concerned about. 347 00:21:31,119 --> 00:21:33,840 Speaker 1: So that's the case that's going to go before the 348 00:21:33,840 --> 00:21:36,560 Speaker 1: Supreme Court. I don't see it as much of a 349 00:21:36,560 --> 00:21:39,800 Speaker 1: difficult First Amendment case. The Ninth Circuit it does, but 350 00:21:40,320 --> 00:21:42,919 Speaker 1: obviously it is a broad statute and we'll see what 351 00:21:42,960 --> 00:21:45,280 Speaker 1: the Court does. The Supreme part is certainly rebuffed the 352 00:21:45,400 --> 00:21:48,800 Speaker 1: Ninth Circuit on the first case, and my guesses will 353 00:21:48,840 --> 00:21:52,160 Speaker 1: be rebuked on the second case. Well, the Ninth Circuit 354 00:21:52,359 --> 00:21:55,200 Speaker 1: is the most reverse circuits, so the odds are good. 355 00:21:56,119 --> 00:21:59,760 Speaker 1: Let's look at another ninth circuit case, this one involving arbitration. 356 00:22:00,160 --> 00:22:03,000 Speaker 1: Coin based Global is being sued by a customer who 357 00:22:03,000 --> 00:22:07,320 Speaker 1: wants the cryptocurrency exchange to compensate him for the thirty 358 00:22:08,040 --> 00:22:12,040 Speaker 1: dollars he lost after he gave a scammer remote access 359 00:22:12,080 --> 00:22:16,680 Speaker 1: to his account, and coin Base wants arbitration. So under 360 00:22:16,720 --> 00:22:21,280 Speaker 1: the Federal Arbitration Act, Congress provided that parties who seek 361 00:22:21,800 --> 00:22:26,280 Speaker 1: arbitration can appeal the denial of emotion to compel arbitration. 362 00:22:26,359 --> 00:22:29,760 Speaker 1: And that's important because normally a denial of emotion to 363 00:22:30,200 --> 00:22:33,640 Speaker 1: compel arbitration is not a final order. So Congress stepped 364 00:22:33,680 --> 00:22:36,480 Speaker 1: in and said, we care about arbitration so much that 365 00:22:36,480 --> 00:22:38,800 Speaker 1: we're going to make an exception to the final order 366 00:22:38,880 --> 00:22:42,159 Speaker 1: rule and allow an interlocutory or non final appeal to 367 00:22:42,160 --> 00:22:45,760 Speaker 1: when the court denies a motion to compel arbitration. Obviously, 368 00:22:45,880 --> 00:22:50,200 Speaker 1: companies want to use arbitration because it's much cheaper than 369 00:22:50,240 --> 00:22:55,320 Speaker 1: allowing for any kind of court resolution of challenges, particularly 370 00:22:55,320 --> 00:22:59,000 Speaker 1: by consumers, as in this case involving coin Base. And 371 00:22:59,040 --> 00:23:01,800 Speaker 1: so the question that rises and the courts were split 372 00:23:01,840 --> 00:23:04,560 Speaker 1: on this is if there is an appeal of a 373 00:23:04,640 --> 00:23:08,119 Speaker 1: non frivolous case, does the district Court have to stay 374 00:23:08,200 --> 00:23:12,000 Speaker 1: the case and wait for the court to resolve the appeal, 375 00:23:12,480 --> 00:23:16,000 Speaker 1: or can they continue the challenge in the case while 376 00:23:16,000 --> 00:23:20,040 Speaker 1: the appeal is pending. Courts were split and Congress wasn't 377 00:23:20,040 --> 00:23:22,960 Speaker 1: clear in the Fotol Arbitration Act whether the court had 378 00:23:23,000 --> 00:23:26,119 Speaker 1: to stop proceedings pending the appeal. But I think the 379 00:23:26,280 --> 00:23:31,240 Speaker 1: logic of granting this interlocutory appeal right would suggest that 380 00:23:31,560 --> 00:23:34,879 Speaker 1: coin Base is right and that the court should stop 381 00:23:34,920 --> 00:23:37,600 Speaker 1: proceedings to give the court peli court a chance to 382 00:23:37,600 --> 00:23:41,600 Speaker 1: say whether or not arbitration should have been ordered. And 383 00:23:41,640 --> 00:23:45,359 Speaker 1: the Supreme Court has supported arbitration over and over again 384 00:23:45,400 --> 00:23:47,960 Speaker 1: in cases. Yeah, yeah, the Supreme Court has been very 385 00:23:48,000 --> 00:23:51,480 Speaker 1: favorable and so my guess is that they will strengthen 386 00:23:51,600 --> 00:23:55,919 Speaker 1: the right of arbitration by saying that pending appeal of 387 00:23:55,960 --> 00:23:59,439 Speaker 1: a denial of emotion arbitration, nothing can go on in 388 00:23:59,480 --> 00:24:02,840 Speaker 1: the trial court until the arbitration issue is resolved one 389 00:24:02,840 --> 00:24:05,480 Speaker 1: way or the other. Coming up next most of the 390 00:24:05,520 --> 00:24:08,920 Speaker 1: cases coming up next year, with the exception of a few, 391 00:24:09,520 --> 00:24:13,560 Speaker 1: don't have political connotations, and you think that may help 392 00:24:13,600 --> 00:24:18,040 Speaker 1: the justices to foster better working relationships. Of the cases 393 00:24:18,040 --> 00:24:21,240 Speaker 1: that we're so far seeing in two thousand and twenty three, 394 00:24:21,359 --> 00:24:25,560 Speaker 1: only the student loans case falls within this traditional sort 395 00:24:25,600 --> 00:24:29,000 Speaker 1: of liberal versus conservative rift that's really carrying the Supreme 396 00:24:29,080 --> 00:24:33,080 Speaker 1: Court apart. And there's a number of criminal procedure cases, 397 00:24:33,200 --> 00:24:36,080 Speaker 1: criminal statutes that need to be construed, and I think 398 00:24:36,080 --> 00:24:39,640 Speaker 1: we'll have different kinds of alignments on the cases than 399 00:24:39,680 --> 00:24:42,240 Speaker 1: we see in most of the other cases, and it 400 00:24:42,240 --> 00:24:45,520 Speaker 1: will be difficult to predict who's gonna be on what side. Maybe, 401 00:24:45,560 --> 00:24:48,960 Speaker 1: just maybe by trying to get different kinds of coalitions 402 00:24:49,000 --> 00:24:52,320 Speaker 1: on these cases as opposed to you know, typical Dobs 403 00:24:52,359 --> 00:24:55,280 Speaker 1: case or other kinds of major political cases, maybe the 404 00:24:55,480 --> 00:24:58,200 Speaker 1: justices will be able to work together a little more 405 00:24:58,520 --> 00:25:00,960 Speaker 1: and we won't have such a fract your angry court. 406 00:25:01,200 --> 00:25:04,679 Speaker 1: We shall see. Thanks so much, Hally, appreciate all the 407 00:25:04,760 --> 00:25:07,639 Speaker 1: work you did, all the research to be able to 408 00:25:07,720 --> 00:25:11,480 Speaker 1: discuss these cases. That's Professor Harold Crent of the Chicago 409 00:25:11,560 --> 00:25:13,960 Speaker 1: Kent College of Law. And that's it for this edition 410 00:25:13,960 --> 00:25:16,640 Speaker 1: of the Bloomberg Law Show. Remember you can always get 411 00:25:16,640 --> 00:25:19,800 Speaker 1: the latest legal news on our Bloomberg Law Podcast. You 412 00:25:19,840 --> 00:25:23,840 Speaker 1: can find them on Apple Podcasts, Spotify, and at www 413 00:25:24,080 --> 00:25:28,320 Speaker 1: Dot Bloomberg dot com, slash podcast Slash Law, and remember 414 00:25:28,359 --> 00:25:31,000 Speaker 1: to tune into The Bloomberg Law Show every week night 415 00:25:31,119 --> 00:25:34,600 Speaker 1: at ten pm Wall Street Time. I'm June Grossow, and 416 00:25:34,640 --> 00:25:36,119 Speaker 1: you're listening to Bloomberg