WEBVTT - Conversion Therapy Ban & Comey Pleads Not Guilty 0:00:02.759 --> 0:00:07.000 This is Bloomberg Law with June Grossel from Bloomberg Radio. 0:00:08.680 --> 0:00:13.360 Former FBI Director James Comy pleaded not guilty today to 0:00:13.520 --> 0:00:17.880 charge that he lied to lawmakers and obstructed a congressional proceeding. 0:00:18.440 --> 0:00:21.000 It sets up a trial for early next year that 0:00:21.079 --> 0:00:24.840 will delve into the federal prosecution of one of President 0:00:24.920 --> 0:00:30.639 Donald Trump's biggest perceived enemies. Comy's attorney, Patrick Fitzgerald, a 0:00:30.680 --> 0:00:34.640 former US Attorney for the Northern District of Illinois, entered 0:00:34.680 --> 0:00:37.559 the plea of not guilty and said it was the 0:00:37.680 --> 0:00:41.600 honor of my life to represent mister Komy in this matter. 0:00:42.000 --> 0:00:45.559 It wasn't surprising that Fitzgerald said Komy would be asking 0:00:45.600 --> 0:00:48.559 for the case to be dismissed, but there were some 0:00:48.800 --> 0:00:52.880 other surprises during the less than half hour hearing. Joining 0:00:52.880 --> 0:00:55.760 me is Bloomberg Legal reporter Chris Strom, who was in 0:00:55.880 --> 0:00:59.960 the courtroom. Chris So, the defense attorney sort of outlined 0:01:00.040 --> 0:01:02.840 and the grounds they would use to try to dismiss 0:01:02.880 --> 0:01:03.360 the case. 0:01:03.840 --> 0:01:07.440 His attorney is Patrick Fitzgerald, who is a very well known, 0:01:07.720 --> 0:01:13.880 very respected lawyer, former US attorney for Chicago, and he 0:01:14.760 --> 0:01:19.640 made three main points that they are going to challenge 0:01:20.080 --> 0:01:25.480 that the case against Komi represents a vindictive prosecution and 0:01:25.560 --> 0:01:31.520 a selective prosecution, and that the appointment of the interim 0:01:31.640 --> 0:01:35.720 US attorney who brought the charge was unlawful. And so 0:01:36.200 --> 0:01:40.080 they are going to move through those phases of challenges 0:01:40.880 --> 0:01:44.560 and if they all fail, then they will go to 0:01:44.680 --> 0:01:45.720 a speedy trial. 0:01:46.280 --> 0:01:50.200 Why does he say that the appointment was unlawful. I 0:01:50.240 --> 0:01:53.880 mean it was one of Trump's former personal attorneys, an 0:01:53.920 --> 0:01:58.520 insurance lawyer with no prosecutoral experience. But I mean, what's 0:01:58.560 --> 0:01:59.120 the objection. 0:02:00.120 --> 0:02:04.200 The objection is that she was not a Justice Department 0:02:04.240 --> 0:02:08.760 official before she was appointed. There are certain rules that 0:02:08.960 --> 0:02:13.079 have to be followed when you are appointing a temporary 0:02:13.320 --> 0:02:17.760 position within the Justice Department, and US attorneys need to 0:02:17.800 --> 0:02:21.280 be Senate confirmed or they need to be given the 0:02:21.320 --> 0:02:27.280 appointment by federal judges. It's allowed to have a temporary appointment, 0:02:27.720 --> 0:02:31.239 but the temporary appointment must be somebody who comes from 0:02:31.280 --> 0:02:34.640 within the Justice Department, which Lindsay Halligan does not. 0:02:35.360 --> 0:02:38.799 So that's interesting because if the judge threw out the 0:02:38.840 --> 0:02:44.360 indictment because she was not a legal appointee, I mean 0:02:44.440 --> 0:02:46.839 the statute of limitations has run, they wouldn't be able 0:02:46.840 --> 0:02:48.440 to bring the charges against him again. 0:02:48.720 --> 0:02:50.800 Correct, the case would be completely dropped and there'd be 0:02:50.800 --> 0:02:52.119 no ability to bring it back. 0:02:52.320 --> 0:02:52.520 You know. 0:02:52.600 --> 0:02:55.960 The only caveat is these are hard motions to win. Generally, 0:02:56.080 --> 0:02:58.880 judges are hesitant to throw out cases that grand jury's 0:02:58.880 --> 0:03:02.680 have returned, so so the defense does face some obstacles 0:03:03.040 --> 0:03:05.880 to being able to do it. But the rules of 0:03:06.080 --> 0:03:09.800 how US attorneys are appointed in what they can actually 0:03:09.840 --> 0:03:13.960 do raise legitimate questions for the defense to challenge the 0:03:14.000 --> 0:03:15.359 appointment of Halligan. 0:03:15.960 --> 0:03:19.600 So Fitzgerald said that the defense hasn't been giving any 0:03:19.639 --> 0:03:23.200 additional details about the charges. What kind of information is 0:03:23.240 --> 0:03:24.000 he looking for? 0:03:24.440 --> 0:03:30.280 Specifically, the defense wants to know who Komy authorized to 0:03:30.320 --> 0:03:35.960 provide information, and what information that person provided and who 0:03:36.080 --> 0:03:39.080 it related to. In the indictment, it says that Komy 0:03:39.280 --> 0:03:44.560 authorized person three to provide information about person one. It's 0:03:44.560 --> 0:03:47.080 pretty clear from everything we know that person one is 0:03:47.120 --> 0:03:50.080 actually Hillary Clinton, but what's not clear is who is 0:03:50.120 --> 0:03:56.080 person three that actually provided the information. And Komi's defense 0:03:56.320 --> 0:03:58.440 is saying that to this date, they still have not 0:03:58.560 --> 0:04:02.840 been told specifically the details of the indictment, which they 0:04:02.960 --> 0:04:05.480 need to know in order to mount their defense. 0:04:05.920 --> 0:04:10.160 It was a very skimpy indictment. Just explain what he's 0:04:10.560 --> 0:04:11.760 accused of doing. It. 0:04:11.760 --> 0:04:15.440 It's not the leak, yeah, correct. Comy's accused of lying 0:04:15.720 --> 0:04:19.320 to Congress, making a false statement during a testimony that 0:04:19.360 --> 0:04:23.240 he gave to the Senate Judiciary Committee in September of 0:04:23.360 --> 0:04:27.640 twenty twenty. So it was five years ago, and that's 0:04:27.680 --> 0:04:30.320 why the Justice Department was up against the statute of 0:04:30.400 --> 0:04:33.680 limitations in order to bring this charge. And so what 0:04:33.720 --> 0:04:38.320 the Justice Department said is that during Kmy's testimony, Comy 0:04:38.480 --> 0:04:42.440 said that he stood by previous testimony that he never 0:04:42.560 --> 0:04:48.039 authorized anybody to leak information about either the Hillary Clinton 0:04:48.120 --> 0:04:51.960 investigation or the Trump investigation. And what the Justice Department 0:04:52.040 --> 0:04:55.160 is saying is that Komy made a false statement by 0:04:56.680 --> 0:05:01.039 saying he stood behind his previous testimony. So Komy is 0:05:01.040 --> 0:05:05.760 not being charged with actually authorizing the leak. He's being 0:05:05.839 --> 0:05:09.160 charged with lying about authorizing the leak. 0:05:09.720 --> 0:05:14.400 The prosecutor's response was there's a lot of classified information here. 0:05:14.480 --> 0:05:17.720 Were they saying that they couldn't turn things over fast. 0:05:18.240 --> 0:05:23.040 So the new wrinkle from today was that the prosecution 0:05:23.240 --> 0:05:26.919 said that there's a large amount of discovery material that 0:05:26.960 --> 0:05:30.960 they have to sort through, which includes classified information. Up 0:05:31.040 --> 0:05:34.000 until now, we had never heard them say that there 0:05:34.160 --> 0:05:41.080 is a trove of classified information, and that could complicate 0:05:41.240 --> 0:05:46.040 the ability of the case to move forward and also 0:05:46.440 --> 0:05:52.320 Komy to mount his defense because the government needs to 0:05:52.400 --> 0:05:56.279 work out a process by which classified information can be 0:05:56.440 --> 0:06:01.479 shared with Komy's defense team or provided to the judge 0:06:01.880 --> 0:06:06.839 under seal. And I think everybody was surprised when the 0:06:06.880 --> 0:06:11.080 prosecution said that they have classified information that they need 0:06:11.120 --> 0:06:14.520 to sort through, and the judge quickly said he does 0:06:14.600 --> 0:06:19.320 not intend to have a long delay, if any delay 0:06:20.040 --> 0:06:24.360 as a result of needing to deal with classified information. 0:06:24.960 --> 0:06:29.080 The judges basically ordered the prosecution team to get their 0:06:29.120 --> 0:06:33.680 act together, sort through all of the discovery, determine how 0:06:33.680 --> 0:06:37.919 they're going to handle the classified information, and provide the 0:06:38.080 --> 0:06:42.279 necessary material to Komy for his defense. 0:06:42.560 --> 0:06:44.839 The judge said, this doesn't appear to be an overly 0:06:44.920 --> 0:06:48.479 complicated case. I mean, they can certainly give Komy the 0:06:48.600 --> 0:06:51.320 name of the people in the indictment. I mean that 0:06:51.400 --> 0:06:52.880 seems bare minimum. 0:06:53.320 --> 0:06:57.960 Yeah, it was surprising that the government had not already 0:06:58.360 --> 0:07:03.240 provided Komy and his lawyers with the just the basic 0:07:03.320 --> 0:07:10.480 information of who they allege Komy authorized to leak information 0:07:10.920 --> 0:07:13.880 the lawyer for Komy said that they had had no 0:07:14.000 --> 0:07:17.600 discussion with the government until yesterday, and even then that 0:07:17.760 --> 0:07:21.640 was a very brief discussion, and so Comy's defense is 0:07:21.680 --> 0:07:27.840 saying that they need to see the details of what 0:07:28.800 --> 0:07:32.680 the charges actually are. And it really speaks to how 0:07:32.760 --> 0:07:36.960 unusual this case, you know, has been from the start, 0:07:37.360 --> 0:07:42.680 and how there might be a problem with the ability 0:07:42.920 --> 0:07:46.840 of the new US attorney, who has never prosecuted as 0:07:46.880 --> 0:07:51.040 a case before, to manage this prosecution. 0:07:51.320 --> 0:07:54.080 The two prosecutors who have signed on to handle the 0:07:54.080 --> 0:07:57.600 case are both based in North Carolina, as opposed to 0:07:57.640 --> 0:08:01.160 the Eastern District of Virginia where the case is taking place. 0:08:01.840 --> 0:08:05.560 YEP, it's our understanding that most of the career officials 0:08:05.760 --> 0:08:08.640 in the US Attorney's Office for the Eastern District of 0:08:08.720 --> 0:08:12.720 Virginia looked at the case and determined that there wasn't 0:08:12.720 --> 0:08:16.480 sufficient evidence to bring a case or go to the 0:08:16.480 --> 0:08:20.440 grand jury and get an indictment, and so none of 0:08:20.440 --> 0:08:25.040 them are willing to sign on to this case. And 0:08:25.720 --> 0:08:31.520 Trump installed a brand new US attorney who went and 0:08:31.560 --> 0:08:36.360 got the indictment by herself, with no other prosecutors from 0:08:36.720 --> 0:08:41.520 the office signed onto the indictment. And then had to 0:08:41.559 --> 0:08:46.000 bring in assistant US attorneys from another office in order 0:08:46.040 --> 0:08:47.360 to appear in court today. 0:08:47.520 --> 0:08:48.920 I don't know if I've ever heard of anything like 0:08:49.000 --> 0:08:50.040 that happening before. 0:08:50.480 --> 0:08:51.000 I haven't. 0:08:51.679 --> 0:08:54.240 What do we know about the judge because President Trump 0:08:54.280 --> 0:08:57.840 has already called him a crooked Joe Biden appointed judge. 0:08:58.440 --> 0:09:03.040 So the judge's reputation, he's very respected and considered to 0:09:03.080 --> 0:09:08.240 be studious and knowledgeable of the law. He previously served 0:09:08.320 --> 0:09:13.080 in the Justice Department. He came onto the bench with experience, 0:09:13.360 --> 0:09:17.240 and he's been handling cases in the Eastern District of 0:09:17.320 --> 0:09:21.400 Virginia for several years now, and these are can be 0:09:21.440 --> 0:09:24.840 some of the most complicated cases that the Justice Department 0:09:24.880 --> 0:09:28.480 deals with. In this case, though, as the judge said, 0:09:28.640 --> 0:09:32.280 it appears to be just a relatively straightforward case and 0:09:33.160 --> 0:09:35.720 should only take a couple of days with the trial, 0:09:36.120 --> 0:09:40.000 and so there's nothing that indicates that the judge should 0:09:40.080 --> 0:09:47.200 have any problem with being able to manage a relatively simple, 0:09:47.240 --> 0:09:48.240 straightforward case. 0:09:49.240 --> 0:09:53.040 So the trial is scheduled for January fifth. Are there 0:09:53.080 --> 0:09:54.719 any other hearings scheduled? 0:09:55.480 --> 0:09:59.719 Yes, there will be two hearings with oral arguments, one 0:09:59.720 --> 0:10:02.559 in the November and one in December, and then along 0:10:02.600 --> 0:10:06.920 the way there'll be status reports, and there's supposed to 0:10:06.920 --> 0:10:11.400 be an agreement on how to handle discovery. The judge 0:10:12.240 --> 0:10:16.840 actually said to get an agreement by this Friday between 0:10:17.120 --> 0:10:20.280 the government and the defense and if they can agree 0:10:20.480 --> 0:10:23.800 on how to handle discovery by this Friday, then both 0:10:23.840 --> 0:10:27.040 sides are supposed to present their own proposals on Monday, 0:10:27.440 --> 0:10:30.280 at which point the judge will then work out a 0:10:30.320 --> 0:10:31.640 compromise between the two. 0:10:32.240 --> 0:10:37.360 Could the prosecution be using these classified materials as a 0:10:37.400 --> 0:10:39.040 sort of stalling tactic. 0:10:40.240 --> 0:10:43.160 It can be used by the government as a stalling technique. 0:10:43.640 --> 0:10:46.679 The government, when they're dealing with classified information, they have 0:10:46.720 --> 0:10:49.880 to go through a process by which they come to 0:10:49.920 --> 0:10:55.680 a decision on whether declassifying information or giving the Defense 0:10:55.760 --> 0:10:59.920 Council a clearance to be able to review the classified information. 0:11:00.600 --> 0:11:06.120 And so what can happen in very complicated cases is 0:11:06.160 --> 0:11:11.040 that the intelligence agencies that basically own the classified information 0:11:11.960 --> 0:11:15.760 might resist allowing it to be shared with the Defense 0:11:15.800 --> 0:11:20.120 Council for some reason, maybe a national security reason, or 0:11:20.200 --> 0:11:23.280 because it relates to some kind of an ongoing investigation 0:11:23.400 --> 0:11:27.679 or an ongoing operation. And so we need to see 0:11:27.960 --> 0:11:31.319 how the government is going to proceed with the classified 0:11:31.360 --> 0:11:35.520 information in Comy's case. If they come back and say 0:11:35.640 --> 0:11:40.439 that there's resistance to declassifying the information or sharing the information, 0:11:41.240 --> 0:11:46.320 then that could throw a wrench into the schedule for 0:11:46.640 --> 0:11:49.320 the upcoming hearings on the motions and the actual trial. 0:11:49.760 --> 0:11:54.120 But again the judges said, he does not look at 0:11:54.120 --> 0:11:56.880 this as being a complicated case at all, and he 0:11:56.920 --> 0:12:01.839 basically ordered the prosecution to figure out everything they need 0:12:01.880 --> 0:12:04.720 to do very quickly, and that he's not going to 0:12:04.720 --> 0:12:05.920 allow them to play games. 0:12:06.440 --> 0:12:09.040 Well, see how fast he can move it along. Thanks 0:12:09.040 --> 0:12:13.360 so much, Chris. That's Bloomberg Legal reporter Chris Strom coming up. 0:12:13.960 --> 0:12:17.960 Colorado's ban on conversion therapy is on the line at 0:12:17.960 --> 0:12:23.520 the Supreme Court. This is Bloomberg. Colorado is one of 0:12:23.679 --> 0:12:28.000 twenty seven states that bar licensed counselors from using talk 0:12:28.120 --> 0:12:32.200 therapy to try to change a child sexual orientation or 0:12:32.280 --> 0:12:38.120 gender identity. Colorado's Solicitor General, Shannon Stevenson defended the law 0:12:38.200 --> 0:12:42.800 at the Supreme Court, arguing that the Constitution allows states 0:12:42.840 --> 0:12:47.000 to protect patients from harmful treatments. Even if a regulation 0:12:47.440 --> 0:12:49.599 incidentally affects speech. 0:12:50.080 --> 0:12:53.000 State cannot lose its power to regulate the very professionals 0:12:53.080 --> 0:12:56.560 that it licenses just because they are using words. A 0:12:56.559 --> 0:12:59.400 healthcare provider cannot be free to violate the standard of 0:12:59.440 --> 0:13:03.040 care just because they are using words. And a state 0:13:03.080 --> 0:13:06.400 cannot be required to let its vulnerable young people waste 0:13:06.440 --> 0:13:10.200 their time and money on an ineffective, harmful treatment just 0:13:10.280 --> 0:13:12.440 because that treatment is delivered through words. 0:13:13.120 --> 0:13:17.840 A Christian counselor is challenging the twenty nineteen law as 0:13:18.000 --> 0:13:22.080 violating her free speech rights, saying it wrongly bars her 0:13:22.120 --> 0:13:26.880 from offering voluntary faith based therapy for kids, and the 0:13:26.880 --> 0:13:31.080 Court's conservative justices appear to agree with her during oral 0:13:31.200 --> 0:13:35.800 arguments questioning the constitutionality of the law. Here are Chief 0:13:36.040 --> 0:13:39.000 Justice John Roberts and Justice Samuel Alito. 0:13:39.840 --> 0:13:44.360 In other words, just because they're engaged in conduct, it 0:13:44.440 --> 0:13:46.280 doesn't mean that their words aren't protected. 0:13:47.679 --> 0:13:50.320 One viewpoint is the viewpoint that a miner should be 0:13:50.360 --> 0:13:54.600 able to obtain talk therapy to overcome same sex attraction 0:13:54.679 --> 0:13:56.880 if that's what he or she wants, and the other 0:13:57.440 --> 0:13:59.560 is the viewpoint that the miner should not be able 0:13:59.600 --> 0:14:03.720 to obtain taught therapy to overcome same sex attraction, even 0:14:03.720 --> 0:14:06.320 if that is what he or she wants. Looks like 0:14:06.440 --> 0:14:08.040 blatant viewpoint discrimination. 0:14:08.800 --> 0:14:12.480 Liberal justice is Sonya so To Mayor and Katanji Brown 0:14:12.600 --> 0:14:15.679 Jackson suggested they would back the law. 0:14:16.200 --> 0:14:16.520 So Too. 0:14:16.600 --> 0:14:20.000 Mayor was the only justice who addressed the harms that 0:14:20.160 --> 0:14:25.480 all major medical associations warn about conversion therapy. 0:14:25.640 --> 0:14:30.120 There are studies that say that this advice does harm 0:14:30.240 --> 0:14:34.160 the people emotionally and physically. 0:14:34.720 --> 0:14:39.360 And Jackson question the First Amendment implications. 0:14:39.320 --> 0:14:44.200 Whether a therapist who is acting in their professional capacity 0:14:44.240 --> 0:14:49.200 to help someone achieve their goals, is really expressing the 0:14:49.320 --> 0:14:53.400 kind of message or expressing a message for First Amendment purposes. 0:14:53.440 --> 0:14:57.120 I mean, I understand if ms Child's here were writing 0:14:57.160 --> 0:15:01.760 an article about conversion therapy or writing or giving a 0:15:01.800 --> 0:15:02.720 speech about it. 0:15:03.000 --> 0:15:05.360 My guest is an expert on religion in the law. 0:15:05.640 --> 0:15:10.400 Caroline Malacorbin, a professor at the University of Miami Law School. 0:15:10.840 --> 0:15:16.640 Will you explain conversion therapy and Colorado's law, as about half. 0:15:16.400 --> 0:15:21.120 The states in the country have done Colorado banns something 0:15:21.240 --> 0:15:26.280 that has been called gay conversion therapy that now probably 0:15:26.320 --> 0:15:30.760 also includes trans conversion therapy, so it's just known as 0:15:30.840 --> 0:15:35.000 conversion therapy, and it's the idea of trying to convince 0:15:35.080 --> 0:15:38.800 someone who is gay that they're not actually gay, or 0:15:38.840 --> 0:15:41.440 trying to convince someone who is trans that they're not 0:15:41.520 --> 0:15:46.480 actually trans. And this approach to gay and trans people 0:15:46.800 --> 0:15:51.720 has been proven to be very delictorious for their mental 0:15:51.760 --> 0:15:56.760 well being, and so states have forbidden it. They have 0:15:56.920 --> 0:16:02.400 made it illegal for licensed medical professionals to provide this 0:16:03.040 --> 0:16:07.000 as part of their practice of medicine. So to be 0:16:07.160 --> 0:16:11.320 very clear, it doesn't ban clergy from talking to people 0:16:11.600 --> 0:16:15.200 about sexual orientation or gender identity, and it doesn't even 0:16:15.280 --> 0:16:18.560 ban the therapists from talking about it in their own 0:16:18.680 --> 0:16:22.200 free time. But if they are in the process of 0:16:22.280 --> 0:16:28.280 providing health care services that they have been licensed to provide, 0:16:28.800 --> 0:16:32.200 they're not allowed to try and convince gay people that 0:16:32.240 --> 0:16:36.119 they're not gay, or trans people that they're not trans. 0:16:36.400 --> 0:16:38.000 That's the law, and. 0:16:37.920 --> 0:16:40.160 What's the fundamental issue in the case. 0:16:40.720 --> 0:16:44.640 So you have this law. It says, if you're licensed 0:16:44.680 --> 0:16:47.120 by the state, the state does not allow you to 0:16:47.160 --> 0:16:50.600 do things that are contrary to the standard of care, 0:16:50.880 --> 0:16:55.560 and so you cannot provide conversion therapy. And we have 0:16:55.680 --> 0:17:01.320 this white Christian woman who argues that the ban forbids 0:17:01.320 --> 0:17:04.920 her from providing the type of therapy that she wants 0:17:05.280 --> 0:17:09.240 to practice. She gets help from Alliance to Friending Freedom 0:17:09.760 --> 0:17:14.640 and they argue that this ban on conversion therapy violates 0:17:14.720 --> 0:17:18.000 her free speech rights. And so the question before the 0:17:18.080 --> 0:17:23.960 court is does this ban on this medical therapy violate 0:17:24.119 --> 0:17:30.040 the licensed practitioners' free speech rights? And the legal question 0:17:30.760 --> 0:17:36.280 that makes all the difference is whether providing conversion therapy 0:17:36.760 --> 0:17:42.080 is speech or whether it's conduct. Because if it's speech, 0:17:42.920 --> 0:17:46.320 then it implicates the free speech clause. In fact, it 0:17:46.400 --> 0:17:53.320 becomes presumptively unconstitutional. If, on the other hand, it's considered conduct, 0:17:53.560 --> 0:17:56.919 then it doesn't trigger the free speech clause and the 0:17:56.960 --> 0:17:59.800 government is likely to be allowed to regulate it. So 0:18:00.160 --> 0:18:06.919 the million dollar constitutional question is how should this practice 0:18:06.920 --> 0:18:11.399 of conversion therapy get characterize? Is it speech or is 0:18:11.440 --> 0:18:15.000 it conduct? Now, I just want to point out that 0:18:15.359 --> 0:18:19.560 the speech in the colloquial sense doesn't always match speech 0:18:19.640 --> 0:18:22.720 in the constitutional sense. So let me give you a 0:18:22.720 --> 0:18:27.200 couple of examples when speech is not actually speech, which 0:18:27.200 --> 0:18:34.359 seems counterintuitive. And yet, if for example, you told national 0:18:34.480 --> 0:18:39.560 security secrets to a foreign enemy, that's speech, but that 0:18:39.640 --> 0:18:42.320 it wouldn't be treated as speech, it would be treated 0:18:42.480 --> 0:18:46.240 as the conduct of treason. It's not protected by the 0:18:46.240 --> 0:18:50.960 free speech clause, or for example, a sign on a 0:18:51.040 --> 0:18:54.680 restaurant that said, we do not hire fill in the blank, 0:18:54.720 --> 0:18:57.520 we do not hire black people, or Latino people or 0:18:57.560 --> 0:19:02.920 Asian people. Right, that's words, But that would be considered speech. 0:19:03.160 --> 0:19:06.919 It would be considered the act of discrimination. And so 0:19:07.480 --> 0:19:11.080 while it may seem really obvious on its face, well, 0:19:11.280 --> 0:19:14.560 this is words and therefore it's speech, it's not quite 0:19:14.600 --> 0:19:19.280 as clear cut as the Supreme Court is going to 0:19:19.720 --> 0:19:20.639 probably conclude. 0:19:21.600 --> 0:19:26.320 It seems like there's almost universal agreement among the legal 0:19:26.400 --> 0:19:31.840 experts who listen to the oral arguments that Colorado is 0:19:31.880 --> 0:19:36.000 going to lose and the Christian counselor is going to win. 0:19:37.080 --> 0:19:43.160 I mean, clearly, whenever you have a white conservative Christian 0:19:43.960 --> 0:19:47.399 arguing before the Supreme Court, they're going to win, especially 0:19:47.440 --> 0:19:49.640 if the only thing is at stake, and I say 0:19:49.720 --> 0:19:54.280 only from the Court's perspective is LGBTQ rights. They just 0:19:54.320 --> 0:19:58.240 don't care, right, So, I think it was a foregone conclusion, 0:19:58.880 --> 0:20:02.679 apart from any of the lead principles, that the white 0:20:02.760 --> 0:20:04.960 Christian woman was going to win. You know, I never 0:20:05.080 --> 0:20:08.040 used to predict the outcome of Supreme Court cases, but 0:20:08.160 --> 0:20:11.800 it seems the pattern is so clear these days that 0:20:11.960 --> 0:20:14.679 I think one could say with a certain degree of 0:20:14.680 --> 0:20:17.800 confidence that she's going to win. And they're basically going 0:20:17.920 --> 0:20:23.960 to say this is speech, and therefore it is presumptively unconstitutional, 0:20:24.440 --> 0:20:28.480 and only if the government has a super compelling justification 0:20:28.960 --> 0:20:34.000 for its law, and the law was the only way 0:20:34.000 --> 0:20:36.720 to accomplish its goals, it's not going to win. In 0:20:36.760 --> 0:20:39.000 other words, it's going to have to pass what is 0:20:39.040 --> 0:20:41.639 known as strict scrutiny, and that is very hard to 0:20:41.680 --> 0:20:42.960 do in the speech context. 0:20:43.560 --> 0:20:46.199 It seemed like most of the discussion was about what 0:20:46.480 --> 0:20:48.160 standard should be applied here. 0:20:48.760 --> 0:20:54.040 Well, that's because if it is considered speech, then the 0:20:54.119 --> 0:20:56.960 standard is going to be strict scrutiny. And if it 0:20:57.040 --> 0:21:00.000 is not speech, then it's only going to be rational 0:21:00.240 --> 0:21:04.600 basis scrutiny. So what level of scrutiny a court must 0:21:04.680 --> 0:21:08.600 give to this law, how hard it looks at it, 0:21:08.720 --> 0:21:13.800 questions it, the level of evidence the government needs to 0:21:13.840 --> 0:21:18.080 provide will depend on whether it is speech or conduct, 0:21:18.200 --> 0:21:22.359 because again, if it is speech, then it implicates the 0:21:22.359 --> 0:21:23.359 free speech clause. 0:21:24.119 --> 0:21:27.240 Is this a novel issue coming to the court? Have 0:21:27.320 --> 0:21:29.640 they decided any similar cases? 0:21:30.000 --> 0:21:34.760 The Supreme Court is not deciding this against a blank slate. 0:21:35.280 --> 0:21:40.439 They have already considered the question of medical treatment and 0:21:40.520 --> 0:21:44.680 speech conduct, but in the abortion context. So I want 0:21:44.720 --> 0:21:49.120 to highlight that many states who are hostile to abortion, 0:21:49.440 --> 0:21:52.760 one of the things that they require their abortion providers 0:21:52.760 --> 0:21:58.480 to do is to give women certain information about abortion. So, 0:21:58.760 --> 0:22:02.920 for example, you have to let women know that adoption 0:22:03.080 --> 0:22:06.720 is an option, or that fathers have to pay child support. 0:22:06.920 --> 0:22:10.399 Other states have held that women have to be told 0:22:10.640 --> 0:22:13.159 all the harms that may result from abortion, some of 0:22:13.200 --> 0:22:15.959 which are not even medically accurate. But the point I 0:22:16.000 --> 0:22:19.920 want to make here is that doctors challenge this regulation 0:22:20.040 --> 0:22:24.680 on speech grounds and argued, the government is forcing us 0:22:24.720 --> 0:22:28.680 to say things that are contrary to what we believe 0:22:29.000 --> 0:22:33.639 is appropriate and correct. And you might think, well, these 0:22:33.680 --> 0:22:37.879 are words, and they're being forced to articulate a particular 0:22:38.080 --> 0:22:42.320 viewpoint on things, for example, don't have an abortion, you know, 0:22:42.960 --> 0:22:46.439 adopt your child out instead. That it too should be 0:22:46.520 --> 0:22:51.159 considered a regulation of speech that limits that sort of 0:22:51.200 --> 0:22:55.600 compels a viewpoint. It's a viewpoint based restriction and therefore 0:22:55.640 --> 0:23:01.080 should trigger strict scrutiny and be presumptively unconstitutional. But that 0:23:01.359 --> 0:23:04.800 is not what the Supreme Court did. What the Supreme 0:23:04.920 --> 0:23:09.359 Court said is that these laws that compel doctors to 0:23:09.440 --> 0:23:12.320 speak against their will and say things that they don't 0:23:12.359 --> 0:23:15.720 want to say, the Supreme Court held that is not 0:23:15.800 --> 0:23:20.439 a regulation of speech, that is actually a regulation of 0:23:20.520 --> 0:23:26.440 the medical profession that only incidentally affects speech. So they're 0:23:26.840 --> 0:23:32.560 deciding this case against a backdrop of the Supreme Court 0:23:32.800 --> 0:23:38.399 already having held in a different context that speech that 0:23:38.560 --> 0:23:42.439 is connected to the provision of medical treatment is not 0:23:42.760 --> 0:23:47.920 necessarily going to be treated like speech. And so you know, oh, 0:23:48.000 --> 0:23:51.960 it just so happens, right that if you're challenging something 0:23:51.960 --> 0:23:56.560 that's anti abortion, it's not speech, but if you're challenging 0:23:56.600 --> 0:23:59.879 something that's pro LGBT, it is speech. 0:24:01.000 --> 0:24:04.560 If the Justices rule for the Christian counselor here, how 0:24:04.600 --> 0:24:06.240 will they distinguish that case. 0:24:07.119 --> 0:24:10.600 The way they will get around it is they will say, well, 0:24:11.240 --> 0:24:15.200 in the abortion case, it wasn't just speech. The doctors 0:24:15.200 --> 0:24:20.040 also did something, but in this case it is just speech, 0:24:20.760 --> 0:24:24.840 and that justifies treating the two differently. And they're going 0:24:24.920 --> 0:24:29.840 to use that same distinction, no doubt with their differential 0:24:29.880 --> 0:24:33.959 treatment of gender affirming care because you might think, well, 0:24:34.480 --> 0:24:38.439 if providing medical services now is going to implicate the 0:24:38.480 --> 0:24:44.040 free speech clause, then perhaps other kinds of medical care 0:24:44.119 --> 0:24:47.560 should also have free speech protection, like gender affirming care 0:24:47.640 --> 0:24:51.400 when you talk to your doctor and they also provide 0:24:51.400 --> 0:24:56.960 some psychological counseling. If it's just psychological counseling, then perhaps 0:24:57.000 --> 0:25:00.320 they will get the same protection as a therapist who 0:25:00.640 --> 0:25:04.600 just provides talk therapy. But if it's gender firming care 0:25:04.680 --> 0:25:10.160 coupled with some actual medicine, then they'll say no, no, no, no. 0:25:10.480 --> 0:25:15.040 That's the regulation of medicine that doesn't get any heightened reviewer, 0:25:15.119 --> 0:25:19.879 a very limited heightened review as opposed to regulation of speech. 0:25:20.680 --> 0:25:25.520 Justice Katanji Brown Jackson questioned why the Colorado law should 0:25:25.520 --> 0:25:29.199 be struck down while the court upheld a different measure 0:25:29.359 --> 0:25:34.199 from Tennessee that bands transition related treatments for minors. But 0:25:34.280 --> 0:25:36.080 she didn't push very hard on and she was the 0:25:36.119 --> 0:25:37.680 only one who really mentioned it. 0:25:38.359 --> 0:25:42.159 Yes, exactly, because we have the scrimmatic case that was 0:25:42.200 --> 0:25:47.320 decided recently where states are banning gender firming care and 0:25:47.359 --> 0:25:50.120 the court upheld that they were not challenged on free 0:25:50.119 --> 0:25:54.080 speech grounds. They were challenged on different grounds. But she 0:25:54.320 --> 0:25:58.640 is right to point out the very different results and 0:25:58.720 --> 0:26:04.040 how the results all seem to favor again conservative and 0:26:04.160 --> 0:26:08.800 Christian views at the expense of the LGBTQ community. 0:26:09.480 --> 0:26:12.679 Coming up, might the justices send the case back to 0:26:12.720 --> 0:26:16.400 the lower court. I'm June Grosso. When you're listening to Bloomberg, 0:26:20.280 --> 0:26:24.240 A majority of Supreme Court justices seem likely to side 0:26:24.240 --> 0:26:30.120 with a Christian counselor challenging bands on LGBTQ plus conversion 0:26:30.280 --> 0:26:34.520 therapy for kids as a violation of her First Amendment rights. 0:26:35.240 --> 0:26:39.000 I've been talking to Professor Caroline Malcorbin of the University 0:26:39.040 --> 0:26:42.879 of Miami Law School. So let's just go back to 0:26:42.920 --> 0:26:46.280 the basics for a second. Will you explain what Colorado's 0:26:46.280 --> 0:26:51.560 basic argument is and what the Christian counselor's argument is. 0:26:52.640 --> 0:26:58.280 Again, they took different sides on this major legal question 0:26:58.560 --> 0:27:04.360 of whether the conversion therapy should be conceptualized as speech 0:27:04.960 --> 0:27:10.240 or as conduct. So the therapist argued that this is speech, 0:27:10.880 --> 0:27:15.080 and any time the government regulates the content of speech, 0:27:15.880 --> 0:27:21.199 that regulation is presumptively unconstitutional and must pass what is 0:27:21.240 --> 0:27:25.280 known as strict scrutiny in order to survive. So if 0:27:25.320 --> 0:27:29.720