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

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Speaker 2: The Court is minn and a crisis of ethics. These

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Speaker 2: scandals of obvy the justices have caused public opinion to

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Speaker 2: question the Court's fairness and independence.

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Speaker 3: After a series of ethical missteps by justices and controversial

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Speaker 3: decisions like overturning the right to abortion and granting broad

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Speaker 3: presidential immunity, only thirty five percent of Americans have confidence

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Speaker 3: in the courts, a record low and a steep drop

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Speaker 3: of twenty four points over the last four years. According

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Speaker 3: to a Gallop poll. The Court has more than fifty

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Speaker 3: cases on its dock at this term, including some addressing

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Speaker 3: contentious issues like transgender care for minors, reverse discrimination, ghost guns,

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Speaker 3: and the TikTok ban. Joining me to discuss the oral

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Speaker 3: arguments coming up this year is constitutional law expert Harold

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Speaker 3: cr a professor at the Chicago Kent College of Law.

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Speaker 3: How the Court seems to love First Amendment cases, and

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Speaker 3: there are three coming up this year, the ban on TikTok,

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Speaker 3: age verification for pornography sites, and tax exemptions for religious organizations.

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Speaker 3: Let's start with the ban on TikTok, which will be

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Speaker 3: the first oral arguments of the year next Friday. The

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Speaker 3: Supreme Court is hearing this on an expedited basis because

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Speaker 3: the ban goes into effect on January fifteenth. Tell us

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Speaker 3: about TikTok's First Amendment claims well.

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Speaker 4: Congress in early twenty twenty four passed the law requiring

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Speaker 4: TikTok basically to be divested from its Chinese parent Fighte

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Speaker 4: Dance by January nineteenth, twenty twenty five. And the divestiture

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Speaker 4: requirement has been challenged under the First Amendment and it

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Speaker 4: is far from privilege, and so the Court did decide

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Speaker 4: to take an emergency appeal. So it's not exactly on

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Speaker 4: the merits. It would be an emergency appeal about whether

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Speaker 4: or not they're so convinced that the First Amendment issues

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Speaker 4: are substantial or not that they would give an injunction

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Speaker 4: against the statute to get rid of the January nineteenth deadline. So, obviously,

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Speaker 4: TikTok is incredibly popular in the United States, and the

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Speaker 4: fear that led Congress to order the divestiture is the

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Speaker 4: fact that there is not only a Chinese parent, but

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Speaker 4: the Chinese parent here can collect so much information about

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Speaker 4: one hundred million users or so on TikTok and then

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Speaker 4: change the algorithms by which people see information and through

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Speaker 4: doing that, influence America in a way that is more

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Speaker 4: pro Chinese. There's been no evidence that by dancing, TikTok

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Speaker 4: has done this, but it's certainly, I think well accepted

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Speaker 4: that they could if they wanted to. So that's what

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Speaker 4: led Congress to the divestiture. But that raises huge First

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Speaker 4: Amendment questions because it is picking out one particular social

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Speaker 4: media platform and saying that there can no longer be

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Speaker 4: free expression in that venue because of the fear of

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Speaker 4: the Chinese influence. So it really raises a very important,

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Speaker 4: but a very novel First Amendment claim, and that's what

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Speaker 4: will be heard January tenth in order to make sure

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Speaker 4: there's enough time for the Court to act before January

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Speaker 4: nineteenth if they are so inclined.

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Speaker 3: During his campaign, President elect Donald Trump express support for TikTok,

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Speaker 3: saying he got billions of views on the platform.

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Speaker 5: They brought me a chart and it was a record,

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Speaker 5: and it was so beautiful to see. And as I

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Speaker 5: looked at it, I said, maybe we got to keep

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Speaker 5: this sucker around a little while.

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Speaker 3: And Trump put himself in the middle of this by

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Speaker 3: asking the Supreme Court to stay the law without taking

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Speaker 3: a stance on whether it's unconstitutional. His lawyer, John Sower,

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Speaker 3: the future Uslicitor General, wrote, President Trump alone possesses the

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Speaker 3: consummate deal making expertise, the electoral mandate, and the political

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Speaker 3: will to negotiate a resolution to save the platform while

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Speaker 3: addressing the national security concerns expressed by the government. It's

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Speaker 3: unprecedented to have a future president intervene in a case

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Speaker 3: before the Court before he takes office to try to

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Speaker 3: counteract what the current president has done.

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Speaker 4: So what's even more amazing about that filing is that

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Speaker 4: it raises a presidential power issue under Article two that

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Speaker 4: has never been discussed in the Court before, which is

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Speaker 4: what about the Article to interests of a president elect?

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Speaker 4: Because what President Trump has done, in a kind of

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Speaker 4: rambling filing is suggests that his progatives as a future

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Speaker 4: president should be preserved under Article two by deciding to

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Speaker 4: stay the divestiture date of January nineteenth. We've just never

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Speaker 4: had a case on the powers of a president elect,

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Speaker 4: and President Trump's filing does raise the issue. It's a

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Speaker 4: can of worms that has not been opened, but it

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Speaker 4: may be opened by the Supreme Court. We'll have to

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Speaker 4: see the course of the Court doesn't have to reach that

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Speaker 4: in deciding whether to stay the case or not. But

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Speaker 4: it's a fascinating stub issue.

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Speaker 3: Well, we were all surprised when the Court expanded presidential

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Speaker 3: immunity from criminal prosecution. So I suppose anything is possible.

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Speaker 4: Anything is possible. And you know, as a political matter,

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Speaker 4: President Trump's submission makes some sense because what the Court

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Speaker 4: does by delaying or not delaying the deadline on January nineteenth,

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Speaker 4: will have an impact on his presidency. And so there

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Speaker 4: is absolutely more than a kernel of truth in what

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Speaker 4: President Trump has stated.

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Speaker 3: And for once, we won't have to wait months and

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Speaker 3: months for the Justices to make a decision. The Court

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Speaker 3: will have to rule in one week's time to beat

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Speaker 3: that January nineteenth deadline. Now, on January fifteenth, the Justices

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Speaker 3: are going to hear arguments in a case challenging a

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Speaker 3: Texas law that requires porn sites to verify the ages

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Speaker 3: of users. Industry trade groups contend that the law violates

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Speaker 3: the constitutional rights of adults. Tell us about their challenge.

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Speaker 4: They have two general First Amendment claims. I think they're

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Speaker 4: quite substantial. The first is more of a doctrinal one.

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Speaker 4: The court below used a kind of rational basis test

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Speaker 4: in order to assess the legitimacy of this statute in

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Speaker 4: terms of protecting minors as opposed to a more demanding

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Speaker 4: scrutiny test, and if their strict scrutiny had been afforded

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Speaker 4: as it has been afforded to other similar kinds of

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Speaker 4: age restrictions in statutes on first amendment grounds, that then

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Speaker 4: statute probably would be struck down. So the first challenge

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Speaker 4: is simply did the court below use the wrong standard

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Speaker 4: of scrutiny, in which case the court might then just

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Speaker 4: remanded back for another go round with the fifth circuit.

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Speaker 4: But the second issue is more predictable, which is, if

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Speaker 4: you have age verification on a statute and you require

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Speaker 4: adults to put in you know, whether it's driver's licenses

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Speaker 4: or other proof of age, you will ter people from

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Speaker 4: going to that site for fear of privacy, invasions, for

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Speaker 4: fear of manipulation, et cetera. So there will be a

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Speaker 4: diminution in free expression by having an age verification on

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Speaker 4: this kind of site. And you know, the way the

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Speaker 4: statute is crafted, it applies to any site which has

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Speaker 4: at least a third of its material which may be

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Speaker 4: distasteful or have sexual content which is inappropriate for children. Well,

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Speaker 4: how do you determine that if you have artworks on display,

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Speaker 4: or if you have some kind of erotic poetry, And

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Speaker 4: so there may be just a deterrence of speech by

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Speaker 4: websites having to self edit for fear of reaching this

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Speaker 4: one third threshold, which is very hard to ascertain. So

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Speaker 4: there is a Supreme Court case almost on point of

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Speaker 4: about twenty years ago. It looked at the Shot Online

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Speaker 4: Privacy Act and it had an age verification in it,

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Speaker 4: and it was struck down as unconstitutional and never reenacted

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Speaker 4: by Congress. And I would predict that the Texas stato

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Speaker 4: will be held to be on a constitutional as well,

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Speaker 4: particularly if the Heidens standard of scrutiny is required by

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Speaker 4: the court.

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Speaker 3: As you mentioned, this is an appeal from a Fifth

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Speaker 3: Circuit decision, the Fifth Circuit being the most conservative federal

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Speaker 3: appellate court in the country, and every other court that

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Speaker 3: reviewed similar laws has uphel the laws. Texas, of course,

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Speaker 3: has defended the law, with the ag pointing to a

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Speaker 3: nineteen sixty eight Supreme Court decision that said states could

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Speaker 3: bar the dissemination of pornographic magazines to minors. Is that compelling?

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Speaker 4: Well, the difference is the websites. Right, Once, we have

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Speaker 4: a whole kind of different world that can't be cordoned

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Speaker 4: off into magazines delivered or magazines non delivered. We have

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Speaker 4: a new First Amendment dimension that has been added to it.

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Speaker 3: Next, let's turn to a case involving the First Amendment's

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Speaker 3: religion clauses. The justices will review a Wisconsin Supreme Court

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Speaker 3: decision that said Catholic charities didn't qull for a religious

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Speaker 3: exemption from the state's unemployment tax.

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Speaker 4: The question here is whether you can deny a tax

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Speaker 4: exemption to an arm of a religious institution even though

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Speaker 4: you couldn't deny it to the religious institution itself. So

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Speaker 4: the states that have these exemptions, they say religious organizations

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Speaker 4: are exempt, but how do you tell if it's really

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Speaker 4: a religious organization? And the language in the Wisconsin statute

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Speaker 4: itself basically has to be the organizations that are operated

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Speaker 4: primarily for religious purposes, and they use a test to

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Speaker 4: determine not just the motivation underlying the arm of the

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Speaker 4: religious entity, but also their activities. So in this case,

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Speaker 4: the court said, yes, there can be great religious motivations

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Speaker 4: for operating charities, and they allotted the efforts of the

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Speaker 4: Catholic Church to help out people with disabilities, but they

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Speaker 4: said that the actions of the religious group are secular.

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Speaker 4: It's nothing about imbuing people with religious sense or devotion

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Speaker 4: or anything along those lines. And the court therefore made

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Speaker 4: a distinction between a motivation to create a school, for instance,

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Speaker 4: or a hospital as opposed to trying to encourage religious doctrine.

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Speaker 4: So that is a difficult line drawing issue, and that's

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Speaker 4: the argument here of why it's unconstitutional that will mesh

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Speaker 4: the courts in determining whether these activities are really religious

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Speaker 4: or not. But on the other hand, as the Coupreme

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Speaker 4: Court said more than twenty years ago in the Walks case,

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Speaker 4: sometimes this wine drawing for tax resumption is just inevitable.

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Speaker 4: You can't really get around it. You have to have

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Speaker 4: some kind of test in this instance. So that's the

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Speaker 4: test of motivations and activities separations. And we'll see if

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Speaker 4: the court and stuff like that. It's really unclear.

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Speaker 3: So, but the Roberts Court has expanded religious rights over

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Speaker 3: and over again. Is this another chance for them to

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Speaker 3: expect and religious rights?

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Speaker 4: It is a chance, and it certainly it wouldn't be

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Speaker 4: shocking for the Court to do that, but it is

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Speaker 4: I think only fair to note that if the Court

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Speaker 4: decides that Wisconnting cannot make a distinction between Catholic charities

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Speaker 4: and the Catholic Church, that this will give a huge

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Speaker 4: advantage to religious based organizations that are in healthcare and education,

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Speaker 4: who then don't have to pay the same taxes that

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Speaker 4: secular hospitals and secular universities would.

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Speaker 3: And the effect of a Supreme Court decision upholding this

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Speaker 3: religious exemption would be widespread because almost all the states

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Speaker 3: have laws similar to Wisconsins. Coming up next on the

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Speaker 3: Bloomberg Law Show, I'll continue this conversation with Professor Harold Krant.

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Speaker 3: We'll discuss whether agency power will take another hit at

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Speaker 3: the Court this term, and a warning from the Chief Justice.

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Speaker 3: I'm June Grosso and you're listening to Bloomberg.

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Speaker 6: Change happens because people care about moving the arc of

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Speaker 6: the universe towards justice, and it can take time, and

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Speaker 6: it can take frustration. I live in frustration, and as

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Speaker 6: you heard, every loss truly traumatizes me in my stomach

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Speaker 6: and in my heart.

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Speaker 3: Justice Sonya so To. Mayor and the other liberal justices

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Speaker 3: have been on the losing side of most of the

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Speaker 3: controversial cases at the Supreme Court in the last few years,

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Speaker 3: with the six conservative justices on the winning side, as

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Speaker 3: the Court decided to overturn the right to abortion, expand

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Speaker 3: gun rights, eliminate affirmative action, broaden presidential immunity, and roll

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Speaker 3: back the power of federal agencies. Last term, the Conservative

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Speaker 3: majority overturned a forty year old legal precedent in their

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Speaker 3: attack on the administrative state. And there's a case on

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Speaker 3: the dock at this term involving the Federal Communications Commission

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Speaker 3: that could open a new avenue for a tax on

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Speaker 3: administrative power. I've been talking to constitutional law expert Harold Krant,

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Speaker 3: a professor at the Chicago Kent College of Law, how

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Speaker 3: the Supreme Court is going to consider a challenge to

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Speaker 3: the Universal Service Fund, which uses a charge imposed on

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Speaker 3: monthly phone bills to help more than eight million people

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Speaker 3: afford telephone and broadband service. The challenges are trying to

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Speaker 3: revive the so called non delegation doctrine that says Congress

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Speaker 3: can't delegate its legislative authority to executive agencies. Tell us

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Speaker 3: a little about the issues here.

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Speaker 4: This is a Federal Communications Commission rule, but it's done

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Speaker 4: by delegation from Congress, and so the Congress is delegated

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Speaker 4: to the SEC the power to impose this fee. And

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Speaker 4: the first claim against it is that the SEC shouldn't

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Speaker 4: be imposing a fee that's a tax, and only Congress

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Speaker 4: can impose taxes. This would be a wild argument if

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Speaker 4: the Supreme Court buys it, because agencies apply user fees

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Speaker 4: all the time, and you can look at user fees

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Speaker 4: as attacks, you can look at them as something else,

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Speaker 4: a subsidy. How do you distinguish one from the other.

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Speaker 4: So one way that the Court could just cut back

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Speaker 4: again dramatically the power of agencies is to begin to

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Speaker 4: say that anything that looks like attas can only come

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Speaker 4: from Congress as opposed to the agencies. I don't think

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Speaker 4: the Court will go there, but that's at least one possibility.

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Speaker 4: And there's another one that is pretty clear, because the

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Speaker 4: statue itself says that the fees should be quote sufficient

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Speaker 4: to preserve and advance universal service. That admittedly is quite vague,

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Speaker 4: and so this is another vehicle potentially for the Court

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Speaker 4: to revive the non delegation document, and that would say

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Speaker 4: that Congress, if it gives power to the SEC, has

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Speaker 4: to be far more nuanced and clear than this sort

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Speaker 4: of broad understanding that they set fees sufficient to preserve

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Speaker 4: and advanced universal services, just not giving enough direction to

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Speaker 4: the administrative agency. And there's a third side of this

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Speaker 4: particular challenge which I think is going to be very

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Speaker 4: close on the Supreme Court, which is that the agency

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Speaker 4: has given too much power to a private group. The

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Speaker 4: SEC decided to use a group in this case, which

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Speaker 4: is called a Universal Service Administration Company, which is a

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Speaker 4: private group of mainly people in the telecom industry. They

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Speaker 4: gave that power to set the fee and provided that

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Speaker 4: if the agency took no action within fourteen days, the

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Speaker 4: see recommended by this private group would become binding. So

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Speaker 4: the court may say that the involvement in this private

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Speaker 4: group makes the delegation even more constitutional problematic and strike

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Speaker 4: down the structure on that ground. Maybe it's a small point,

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Speaker 4: but I think the Court might say, Look, the agency

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Speaker 4: at least has to take some positive, concrete actions, such

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Speaker 4: as accepting a private recommendation from the group as to

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Speaker 4: the fee before it becomes binding. In the name of

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Speaker 4: the United States for the Court signaled to Congress to

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Speaker 4: stop giving too much authority to private parties who are

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Speaker 4: not subject to close oversight by the president or heads

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Speaker 4: of agencies.

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Speaker 3: You refer to this as a wild argument. And this

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Speaker 3: case is an appeal from the ultra conservative Fifth Circuit,

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Speaker 3: which often uses novel legal reasoning, and it's split with

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Speaker 3: two other appeals courts in declaring the program invalid. So

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Speaker 3: does it seem like the Court took this case to overturn,

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Speaker 3: to reverse the Fifth Circuit.

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Speaker 4: It's unclear to me. I think that the case has

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Speaker 4: a merit to it, and I think that the Court

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Speaker 4: has been interested in non delegation issues, and particularly non

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Speaker 4: delegation issues involving power that's shared with private parties. So

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Speaker 4: I'm not surprised that the Court took this case. And

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Speaker 4: there is a split in the circuits, and I don't

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Speaker 4: think we can be confident that the Court's going to

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Speaker 4: rebuff the Fifth Circuit in this particular case. I think

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Speaker 4: they will in other cases, but none of that soil

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Speaker 4: in this one.

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Speaker 3: There's an interesting case involving a claim of reverse discrimination

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Speaker 3: in employment and what plaintiffs have to show to support

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Speaker 3: their claims under Title seven.

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Speaker 4: Yes, in order to advance a Title seven case or

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Speaker 4: discrimination case, you have to show kind of a prime

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Speaker 4: officia case that you were treated differently than another covered group,

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Speaker 4: and that because you were treated differently, it resulted in

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Speaker 4: some kind of adverse employment action. So do you even

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Speaker 4: get to the pleting stage. One has to allege these

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Speaker 4: particular type of harms. Now, what happens if you're a

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Speaker 4: member of majority religion or majority race, or if you're

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Speaker 4: straight in terms of your sexuality, and if you then

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Speaker 4: make a claim that even though you're straight, you were

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Speaker 4: treated unfairly based on your straightness, and therefore you are

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Speaker 4: claiming some kind of discrimination that's protected under the Act.

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Speaker 4: And indeed, in the ohioed case, there was an individual

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Speaker 4: who is straight and she didn't get a promotion, and

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Speaker 4: instead the promotion went to someone who is gay and

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Speaker 4: then was later demoted and someone took her old position

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Speaker 4: who was gay as well. And even though someone who

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Speaker 4: is straight made these employment decisions, she claimed that the

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Speaker 4: decision was in violation of her statutory rights to be

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Speaker 4: treated the same as everybody else based upon her sexuality,

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Speaker 4: and a number of courts have held, but others have

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Speaker 4: disagreed that there is an additional hurdle that somebody who

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Speaker 4: is of majority religion, race, or who are straight as

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Speaker 4: in this case, has to surmount before they can get

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Speaker 4: into court, and they have to show background circumstances to

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Speaker 4: give more of color or more oomph to their argument

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Speaker 4: that they were treated unfairly based upon covered characteristics. And

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Speaker 4: in some ways that requirement makes the sense because for

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Speaker 4: a court they have to go into any kind of

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Speaker 4: analysis that just wastes time because it's so unlikely that

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Speaker 4: if you're a majority, you'll be subject to discrimination. And

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Speaker 4: so those courts said, then, as a way to conserve resources,

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Speaker 4: we just want to make sure that somebody who pleaded

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Speaker 4: the case will show a little bit more of those

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Speaker 4: background circumstances, which suggests despite the fact that their majority,

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Speaker 4: they were subject to discrimination.

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Speaker 3: And this decision could have ramifications for DEI initiatives. How

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Speaker 3: before I let you go, let's talk a little about

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Speaker 3: the Chief Justice's year end report, which he issued on Tuesday.

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Speaker 3: He defended the independence of the judiciary, but said it

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Speaker 3: was being threatened by violence against judges, intimidation of judges,

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Speaker 3: and the prospect of federal officials defying court orders. Robert's

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Speaker 3: annual reports typically ignore the current concern surrounding the justices.

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Speaker 3: For example, last year, he looked at the judiciary's role

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Speaker 3: in integrating public schools after Brown v. Board of Education,

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Speaker 3: with no mention at all of the Court having overturned

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Speaker 3: the constitutional right to abortion just a few months earlier.

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Speaker 3: So what's your take on this year's report.

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Speaker 4: It can be empathetic to his wish and his hope

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Speaker 4: and his fervent desire that the Supreme Court retained its

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Speaker 4: independence and respect in our society. And I guess, on

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Speaker 4: one hand, you can be skeptical, given that a lot

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Speaker 4: of the loss of support and respect for the Court

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Speaker 4: has come because of this Court's decisions, most notably Chief

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Speaker 4: Justice Roberts's decision in the presidential communitic case in the

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Speaker 4: abortion case as well. But I mean, I think he

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Speaker 4: is right that we are, in this politicized world, even

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Speaker 4: more open to attacks upon judges than we were before.

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Speaker 4: And there's been picketing in front of justice houses, as

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Speaker 4: we know, and that's something to be probably a little

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Speaker 4: bit frightened up. But there's also been other kinds of defiance.

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Speaker 1: You know.

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Speaker 4: Vice President Advance has suggested that certain times it's totally

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Speaker 4: appropriate for the administration to ignore what the Supreme Court would hold.

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Speaker 4: So there are challenges coming from various different sectors, people

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Speaker 4: that just disagree with the Court as well. It was

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Speaker 4: what people think that they don't have to listen to

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Speaker 4: what the Court says. So there is reason for Chief

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Speaker 4: Justice Roberts to decry those kinds of challenges to the

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Speaker 4: Court's authority. But I think at the same time, part

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Speaker 4: of the problem is the courts aren't doing.

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Speaker 3: And according to the US Martial Service, the volume of

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Speaker 3: threats directed at judges has more than tripled over the

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Speaker 3: past decades, So certainly that's a concern. But when he

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Speaker 3: talked about intimidation, and he mentioned protesters quote intent on

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Speaker 3: harassing judges and public officials he said have tried to

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Speaker 3: intimidate judges by suggesting political bias is behind their decisions

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Speaker 3: without a credible basis. Both of those seem like First

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Speaker 3: Amendment protected activities.

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Speaker 4: They can be right, it's a fine line to draw

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Speaker 4: between when they are harassment as opposed to when it's

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Speaker 4: just criticism of the court. And the way to I

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Speaker 4: think see this clash most plainly is to talk about

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Speaker 4: the immunity decision, and some people can criticize it as

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Speaker 4: being badly crafted. Others can say it's just illegitimate. And

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Speaker 4: those are two ways of criticizing the opinion, and it's

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Speaker 4: hard to say what is really the difference between saying

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Speaker 4: is poorly reasoned as opposed to it's politically lawless. Those

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Speaker 4: are just different perspectives if people don't accept the opinion,

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Speaker 4: and so I think he's conflating one with the other

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Speaker 4: to some extent. But it is notoriously very difficult to

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Speaker 4: try to figure out what is legitimate dissense protests as

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Speaker 4: opposed to one saying that the Supreme Court is lawless

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Speaker 4: and we should have a quick overhaul of the entire

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Speaker 4: judicial system.

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Speaker 3: Robert specifically criticized threats to ignore federal court rulings by

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Speaker 3: elected officials, which he said had come from across the

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Speaker 3: political spectrum. But as you mentioned, and Vice President elect JD.

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Speaker 3: Vance had said, and when the courts stop, you stand

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Speaker 3: behind the country, like Andrew Jackson did, and say the

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Speaker 3: Chief Justice has made his ruling, now let him enforce it.

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Speaker 3: I just want to mention that not only is Vance

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Speaker 3: a lawyer, but his wife clerked for the Chief Justice.

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Speaker 4: Which is an odd term for sure. And the Andrew

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Speaker 4: Jackson issue arose at least allegedly out of protests from

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Speaker 4: a Supreme Court decision saying that the removal of Indigenous

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Speaker 4: peoples from a particular reservation was illegal and ordered the

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Speaker 4: administration to comply with it and by all historical measures.

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Speaker 4: Andrew Jackson refused and continued to disband the indigenous communities.

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Speaker 4: And you know, with the Vice president articulating that kind

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Speaker 4: of issue, it's putting into play this notion that the

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Speaker 4: Court is just another political arm of the country and

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Speaker 4: that it should be subservient to the president vice president

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Speaker 4: who will elected and given a mandate by the voters,

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Speaker 4: unlike the Supreme Court itself. And that is a dangerous

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Speaker 4: notion and maybe some progressives have ported with it as

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Speaker 4: well in frustration with what the Court has done recently.

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Speaker 4: But now the Court is being challenged by the members

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Speaker 4: of its party who appointed most of them, the Republicans,

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Speaker 4: So they have reasons to be nervous because they're now

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Speaker 4: potentially going to be challenged by both sides of the

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Speaker 4: political spectrum.

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Speaker 3: It's going to be an interesting year, that's for sure.

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Speaker 3: Thanks so much, Hal that's Professor Harrold Krent of the

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Speaker 3: Chicago Kent College of Law coming up dueling lawsuits over

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Speaker 3: Blake Lively's claims of sexual harassment on a film set.

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Speaker 3: I'm June Grosso and this is Bloomberg.

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

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Speaker 7: That special connection you feel, that first kiss, but fifteen seconds,

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Speaker 7: that's all it takes to completely change everything. I'm so sorry.

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Speaker 3: The biggest drama in Hollywood these days is not a film,

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Speaker 3: but the legal drama surrounding the hit movie It Ends

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Speaker 3: with Us, starring Blake Lively and director Justin Baldoni. There

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Speaker 3: are dueling lawsuits and probably more to come. Lively sued Baldoni,

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Speaker 3: Wayfairer Studios, and his PR team on Tuesday, alleging sexual

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Speaker 3: harassment and a coordinated campaign to undermine her reputation for

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Speaker 3: coming forward about sexual misconduct on the set of the movie.

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Speaker 3: This came after Baldoni and his publicist filed a two

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Speaker 3: hundred and fifty million dollar defamation suit against The New

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Speaker 3: York Times, claiming the newspaper to fame them in an

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Speaker 3: article about Lively's allegations, which they claim was rife with inaccuracies,

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Speaker 3: misrepresentations and omissions. Joining me is labor and employment lawyer

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Speaker 3: Nisha Verma, a partner at Dorsey and Whitney. Nisha tell

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Speaker 3: us about Lively's lawsuit.

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Speaker 1: Blake Lively ultimately filed a lawsuit in federal court in

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Speaker 1: New York, alleging the same allegations that she had previously

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Speaker 1: indicated about ten days earlier in a complaint that was

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Speaker 1: filed with the state agency in California that handles discrimination

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Speaker 1: and harassment complaints. The complaint accuses Baldoni and the CEO

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Speaker 1: Wayfarer of engaging in inappropriate sexual conduct on set. But

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Speaker 1: that's not all. The very interesting thing about her action

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Speaker 1: is that it shows text messages between Baldoni and his

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00:26:47,600 --> 00:26:50,800
Speaker 1: publicists which indicate that he hired a PR team to

439
00:26:50,880 --> 00:26:55,240
Speaker 1: combat any potential negative PR if Lively goes public with

440
00:26:55,280 --> 00:27:00,200
Speaker 1: what the internal messages call her grievances. Those text message

441
00:27:00,400 --> 00:27:06,840
Speaker 1: between the publicists are explosive. So in one exchange, Baldoni's publicist,

442
00:27:06,960 --> 00:27:11,919
Speaker 1: Jennifer Abel relates to another publicist, Melissa Nathan, that Baldoni's

443
00:27:11,960 --> 00:27:14,920
Speaker 1: not satisfied with this PR plan that's been put forward,

444
00:27:15,440 --> 00:27:17,640
Speaker 1: And we can see from reviewing it a pr plan

445
00:27:17,680 --> 00:27:21,879
Speaker 1: that it is designed to discredit Lively, and there's a

446
00:27:22,119 --> 00:27:25,800
Speaker 1: concern that's quoted by Baldoni that he doesn't feel like

447
00:27:25,840 --> 00:27:29,199
Speaker 1: he's getting the protection he needs, and another publicist been

448
00:27:29,280 --> 00:27:33,679
Speaker 1: responds saying we can bury anyone and we can't write

449
00:27:33,720 --> 00:27:37,000
Speaker 1: that we will destroy her, noting what would happen if

450
00:27:37,040 --> 00:27:39,520
Speaker 1: the communication has gone to the wrong hands. There are

451
00:27:39,600 --> 00:27:43,080
Speaker 1: also texts that show that these two original publicists hired

452
00:27:43,080 --> 00:27:47,040
Speaker 1: another agency to engage in some sort of social media

453
00:27:47,080 --> 00:27:50,080
Speaker 1: activity on a wide scale that would shift the narrative

454
00:27:50,240 --> 00:27:53,560
Speaker 1: from Baldoni to Lively. But the important thing to understand

455
00:27:53,640 --> 00:27:56,600
Speaker 1: is that the core of a case is the same

456
00:27:57,240 --> 00:28:02,000
Speaker 1: employment claims that we see filed by any other individual

457
00:28:02,000 --> 00:28:04,800
Speaker 1: that goes through this state agency, which is sexual harassment

458
00:28:05,040 --> 00:28:09,639
Speaker 1: and retaliation. And so the core of the sexual harassment

459
00:28:09,800 --> 00:28:14,000
Speaker 1: complaints are that Baldoni was engaging in unnecessary sexual conduct,

460
00:28:14,080 --> 00:28:18,760
Speaker 1: unnece sexual comments on text, and that Lively and her

461
00:28:18,800 --> 00:28:23,040
Speaker 1: team brought forward their concerns during the writer strike in

462
00:28:23,119 --> 00:28:27,840
Speaker 1: late twenty twenty three, and the studio actually agreed to

463
00:28:27,920 --> 00:28:32,720
Speaker 1: meet Lively's conditions prior to resuming filming. Lively's complaint in

464
00:28:32,760 --> 00:28:37,680
Speaker 1: and of itself says that filming proceeded smoothly from that point.

465
00:28:38,040 --> 00:28:43,080
Speaker 1: But then there's this very specific action of Baldoni closer

466
00:28:43,120 --> 00:28:46,880
Speaker 1: to the time of marketing the film after filming, hiring

467
00:28:46,920 --> 00:28:50,360
Speaker 1: these pr agents to discredit Lively taking.

468
00:28:50,120 --> 00:28:55,160
Speaker 3: The first part of her allegations about harassment on the set.

469
00:28:55,600 --> 00:28:58,760
Speaker 3: What kinds of things specifically does she complain about.

470
00:28:59,280 --> 00:29:03,600
Speaker 1: So there's an example of Baldoni's and another producer speaking

471
00:29:03,600 --> 00:29:07,120
Speaker 1: about a pornography addiction. So that's something that I'm gathering

472
00:29:07,200 --> 00:29:09,880
Speaker 1: is alleged to have occurred when the filming was not occurring.

473
00:29:10,160 --> 00:29:15,960
Speaker 1: There's also allegations of sex scene being filmed and Valdoni

474
00:29:16,240 --> 00:29:18,520
Speaker 1: going off script and engaging in things that were not

475
00:29:18,560 --> 00:29:19,560
Speaker 1: previously agreed to.

476
00:29:20,560 --> 00:29:24,920
Speaker 3: Baldoni has disputed Lively's claims, and in his suit against

477
00:29:24,920 --> 00:29:28,000
Speaker 3: The New York Times, he claims that The Times deliberately

478
00:29:28,080 --> 00:29:33,800
Speaker 3: omitted portions of text exchanges and other information that contradicted

479
00:29:34,360 --> 00:29:38,680
Speaker 3: Lively's version of events. He's also claimed that Lively wanted

480
00:29:38,720 --> 00:29:43,360
Speaker 3: to wait to meet with an intimacy coordinator when production started,

481
00:29:43,520 --> 00:29:48,120
Speaker 3: and that she advocated for her characters closed to be sexier.

482
00:29:48,680 --> 00:29:50,360
Speaker 3: I mean, if this goes to triale. Is this all

483
00:29:50,400 --> 00:29:54,040
Speaker 3: going to be a jury question about whether this constitutes

484
00:29:54,120 --> 00:29:55,200
Speaker 3: sexual harassment?

485
00:29:55,800 --> 00:29:58,200
Speaker 1: Yeah? I think the question of whether there was sexual

486
00:29:58,240 --> 00:30:00,800
Speaker 1: harassment on the set of this movie is high factual.

487
00:30:01,120 --> 00:30:04,040
Speaker 1: I don't think there's a ton of interesting legal questions

488
00:30:04,120 --> 00:30:07,280
Speaker 1: as to that first part of the lawsuit. I do

489
00:30:07,360 --> 00:30:10,760
Speaker 1: believe that comparing Lively's complaint in Baldoni's complaint does not

490
00:30:10,880 --> 00:30:15,600
Speaker 1: simply answer the question with respect to Lively's allegation. For example,

491
00:30:16,280 --> 00:30:19,640
Speaker 1: the text that Baldoni shared in his complaint, as you

492
00:30:19,760 --> 00:30:22,400
Speaker 1: mentioned against The New York Times, I believe it shows

493
00:30:22,440 --> 00:30:25,640
Speaker 1: that Lively did not need to meet with the intimacy

494
00:30:25,680 --> 00:30:31,760
Speaker 1: coordinator in advance of starting filming. Altogether, Lively's allegations about

495
00:30:31,800 --> 00:30:35,800
Speaker 1: the intimacy coordinator is that during the actor strike, before

496
00:30:36,440 --> 00:30:39,480
Speaker 1: they resumed filming, So this is several months after probably

497
00:30:39,520 --> 00:30:44,680
Speaker 1: that first text. Lively required an intimacy coordinator on set

498
00:30:44,720 --> 00:30:48,200
Speaker 1: at all times. So while Baldoni's complaint appears to go

499
00:30:48,240 --> 00:30:51,840
Speaker 1: to the content of an intimacy coordinator, it doesn't in

500
00:30:51,880 --> 00:30:54,560
Speaker 1: and of itself answer the question as to whether Lively's

501
00:30:54,600 --> 00:30:55,720
Speaker 1: allegation is accurate.

502
00:30:56,120 --> 00:31:00,960
Speaker 3: Let's talk about the retaliation claim he hired a PR team.

503
00:31:01,360 --> 00:31:06,120
Speaker 3: Lots of high profile people and even companies hire crisis

504
00:31:06,160 --> 00:31:10,280
Speaker 3: PR teams. What does she allege that makes that actionable?

505
00:31:10,840 --> 00:31:15,120
Speaker 1: Interestingly, like any other employee that brings a retaliation claim,

506
00:31:15,560 --> 00:31:19,120
Speaker 1: Lively is, at her core asserting that she was subject

507
00:31:19,160 --> 00:31:21,760
Speaker 1: to sexual harassment, she brought a valid complaint against that,

508
00:31:21,840 --> 00:31:24,680
Speaker 1: and then she was subject to an adverse employment action

509
00:31:25,240 --> 00:31:28,600
Speaker 1: as it relates to her complaint. Those are the elements

510
00:31:28,640 --> 00:31:33,000
Speaker 1: of the Elisa California and federal claims that she's bringing. Now,

511
00:31:33,280 --> 00:31:36,360
Speaker 1: that is what I think raises the most interesting legal

512
00:31:36,400 --> 00:31:39,080
Speaker 1: issue here is that her argument is not that she

513
00:31:39,160 --> 00:31:41,640
Speaker 1: was fired from the movie. Her argument isn't that she

514
00:31:41,760 --> 00:31:46,360
Speaker 1: was demoted. Her argument is that her employer hired outside

515
00:31:46,400 --> 00:31:51,240
Speaker 1: professionals to discredit her in connection with the marketing of

516
00:31:51,320 --> 00:31:57,480
Speaker 1: the movie, in anticipation that Lively would ultimately come forward

517
00:31:57,600 --> 00:32:01,840
Speaker 1: with her complaints, which Lively maintains are protected. And so

518
00:32:02,000 --> 00:32:05,760
Speaker 1: I think there's a couple preliminary questions. There was Lively

519
00:32:05,920 --> 00:32:09,000
Speaker 1: an employee of some of these people this entire time?

520
00:32:09,080 --> 00:32:11,600
Speaker 1: Did her employment start and end during the filming of

521
00:32:11,640 --> 00:32:13,640
Speaker 1: the movie, or did she continue to be an employee

522
00:32:13,720 --> 00:32:16,960
Speaker 1: during the marketing? Can there be an adverse employment action

523
00:32:17,400 --> 00:32:19,960
Speaker 1: to someone who maybe is no longer your employee. That's

524
00:32:19,960 --> 00:32:24,080
Speaker 1: an interesting question. And then two, does this conduct of

525
00:32:24,200 --> 00:32:30,000
Speaker 1: hiring publicists to discredit Lively in anticipation of her coming

526
00:32:30,040 --> 00:32:33,880
Speaker 1: forward with her grievances constitute an adverse employment action? Where

527
00:32:34,320 --> 00:32:38,000
Speaker 1: Lively's complaint in and of itself speaks to that damage

528
00:32:38,040 --> 00:32:40,960
Speaker 1: of the adverse employment action being done to other brands

529
00:32:41,000 --> 00:32:45,720
Speaker 1: that are unrelated to her employment on this movie and

530
00:32:45,800 --> 00:32:51,600
Speaker 1: employment with Wayfarer, her beverages brand, her haircare brand, obviously,

531
00:32:51,640 --> 00:32:55,360
Speaker 1: her ability to appear in additional TV shows and on

532
00:32:55,400 --> 00:32:59,200
Speaker 1: Saturday Night Live. There's an interesting and serious question as

533
00:32:59,280 --> 00:33:01,959
Speaker 1: to whether making action that might interfere with her ability

534
00:33:02,000 --> 00:33:05,600
Speaker 1: to essentially work other jobs is an adverse employment action

535
00:33:05,720 --> 00:33:06,520
Speaker 1: in this job.

536
00:33:07,000 --> 00:33:09,960
Speaker 3: If his conduct on set didn't rise to the level

537
00:33:09,960 --> 00:33:13,400
Speaker 3: of sexual harassment, what happens with the retaliation suited?

538
00:33:13,840 --> 00:33:17,200
Speaker 1: The question for the retaliation suit isn't necessarily was she

539
00:33:17,520 --> 00:33:20,760
Speaker 1: actually subject to retaliation under the elements of the law.

540
00:33:20,880 --> 00:33:23,920
Speaker 1: It's did she have a good faith belief to believe

541
00:33:23,960 --> 00:33:27,000
Speaker 1: she was subject to sexual harassment? And did she raise

542
00:33:27,040 --> 00:33:30,240
Speaker 1: a complaint about that? And she did the documentation during

543
00:33:30,240 --> 00:33:33,840
Speaker 1: the actor strike indicates that she did raise that complaint

544
00:33:34,560 --> 00:33:38,600
Speaker 1: and the root of the retaliation action is based on

545
00:33:38,640 --> 00:33:41,560
Speaker 1: her complaint, whether it was one hundred percent true or not.

546
00:33:42,000 --> 00:33:46,280
Speaker 1: Did her employer act in a way adversely to her employment?

547
00:33:46,640 --> 00:33:50,160
Speaker 1: That brings us to the separate tricky question, which is

548
00:33:51,200 --> 00:33:55,360
Speaker 1: hiring publicists in this manner pant him out to an

549
00:33:55,400 --> 00:33:59,440
Speaker 1: adverse employment action when perhaps the person's employment is over.

550
00:34:00,080 --> 00:34:02,959
Speaker 3: It seems like there's a lot having to do with

551
00:34:03,000 --> 00:34:07,360
Speaker 3: the press tour and that Baldoni stepped away from the

552
00:34:07,400 --> 00:34:10,960
Speaker 3: plan that the team originally agreed upon and was focusing

553
00:34:11,040 --> 00:34:16,560
Speaker 3: on female trauma rather than female triumph, and that Lively

554
00:34:16,880 --> 00:34:20,560
Speaker 3: and just about everyone else went in one direction and

555
00:34:21,080 --> 00:34:24,400
Speaker 3: he went in another. Also that they were vague about

556
00:34:24,400 --> 00:34:29,640
Speaker 3: their comments on Baldoni's performances and directing, So it seems

557
00:34:29,680 --> 00:34:32,880
Speaker 3: like the camps divided there. So wouldn't he have a

558
00:34:33,000 --> 00:34:35,839
Speaker 3: rite at that point to try to defend himself And

559
00:34:35,880 --> 00:34:38,359
Speaker 3: you might call it retaliation, but he might call it

560
00:34:38,400 --> 00:34:39,840
Speaker 3: defending himself.

561
00:34:39,560 --> 00:34:42,799
Speaker 1: And he uses those words in the longer texts that

562
00:34:42,960 --> 00:34:46,800
Speaker 1: are included and Baldoni's complain against The New York Times

563
00:34:46,920 --> 00:34:50,319
Speaker 1: Following the portions of the text that I read to

564
00:34:50,400 --> 00:34:54,560
Speaker 1: you with the very salacious and explosive comments of we

565
00:34:54,600 --> 00:34:58,160
Speaker 1: can bury anyone, and we can't write that we will

566
00:34:58,160 --> 00:35:04,360
Speaker 1: destroy her. There is further context where the publicist is

567
00:35:04,360 --> 00:35:07,359
Speaker 1: indicating that this is all an effort to defend you

568
00:35:07,440 --> 00:35:09,960
Speaker 1: because you deserve defense. I think that is going to

569
00:35:10,000 --> 00:35:13,080
Speaker 1: be a highly factual question in the case. I don't

570
00:35:13,120 --> 00:35:17,480
Speaker 1: know that it's going to be determinive because Baldoni's materials

571
00:35:17,520 --> 00:35:21,000
Speaker 1: that he includes in the New York Times complaint don't

572
00:35:21,040 --> 00:35:25,000
Speaker 1: dispute the core allegation by Lively that these individuals were

573
00:35:25,080 --> 00:35:28,680
Speaker 1: hired to discredit Lively, and one of those reasons is

574
00:35:28,719 --> 00:35:31,279
Speaker 1: because there was an anticipation that Lively was going to

575
00:35:31,280 --> 00:35:37,239
Speaker 1: bring forward her grievances, as stated in their materials, and

576
00:35:37,719 --> 00:35:41,840
Speaker 1: it cannot be separated that one of those grievances is

577
00:35:41,880 --> 00:35:47,640
Speaker 1: Lively's allegations of sexual harassment, which should constitute protected activity

578
00:35:47,719 --> 00:35:50,480
Speaker 1: under the laws she's suing. Under the fact that there

579
00:35:50,560 --> 00:35:54,120
Speaker 1: was an underlying sexual harassment complaint here makes some of

580
00:35:54,160 --> 00:35:57,960
Speaker 1: the later motivations I think potentially less relevant when we

581
00:35:58,000 --> 00:36:01,720
Speaker 1: come to the legal analysis of what Lively is alleging.

582
00:36:02,000 --> 00:36:04,720
Speaker 3: He filed a defamation action against the New York Times

583
00:36:04,719 --> 00:36:07,919
Speaker 3: for two hundred and fifty million dollars. He hasn't yet

584
00:36:08,120 --> 00:36:11,239
Speaker 3: filed the lawsuit against Lively. What do you think the

585
00:36:11,880 --> 00:36:13,960
Speaker 3: strategy is here? On his side?

586
00:36:14,040 --> 00:36:15,920
Speaker 1: I believe he filed the lawsuit against The New York

587
00:36:15,920 --> 00:36:18,360
Speaker 1: Times because he knows his ability to file a lawsuit

588
00:36:18,400 --> 00:36:23,120
Speaker 1: against Lively during those ten days was incredibly limited. The

589
00:36:23,239 --> 00:36:25,960
Speaker 1: first legal action to be filed in this, we'll call

590
00:36:26,040 --> 00:36:30,680
Speaker 1: it a controversy, was Lively's agency complaint with the California

591
00:36:30,719 --> 00:36:34,840
Speaker 1: Civil Rights Division. Filing a defamation lawsuit based on somebody's

592
00:36:34,880 --> 00:36:39,560
Speaker 1: submission to that agency or filing some sort of countersuit

593
00:36:39,600 --> 00:36:41,719
Speaker 1: would not go very far at all. It would be

594
00:36:41,760 --> 00:36:45,680
Speaker 1: subject potentially to an anti slat motion, and against filing

595
00:36:45,719 --> 00:36:48,960
Speaker 1: something with the state agency like that is considered privileged

596
00:36:49,120 --> 00:36:52,440
Speaker 1: if there was a defamation action. So in order for

597
00:36:52,560 --> 00:36:56,000
Speaker 1: Baldoni to get essentially his side of the story out,

598
00:36:56,480 --> 00:36:59,640
Speaker 1: I believe the lawsuit against the New York Times was

599
00:37:00,120 --> 00:37:02,080
Speaker 1: his available avenue to do so.

600
00:37:02,080 --> 00:37:07,480
Speaker 3: So she filed that complaint in California, and hours after

601
00:37:07,480 --> 00:37:10,480
Speaker 3: you sued the New York Times, she sued him in

602
00:37:10,760 --> 00:37:12,960
Speaker 3: New York. What's her strategy?

603
00:37:13,480 --> 00:37:16,360
Speaker 1: Well, I'll speak to the states first. So I understand

604
00:37:16,360 --> 00:37:20,839
Speaker 1: from her original contract, which is alleged in her New

605
00:37:20,920 --> 00:37:24,359
Speaker 1: York complaint, I understand that there was a California choice

606
00:37:24,360 --> 00:37:29,520
Speaker 1: of law provision. Therefore, that does explain the submission of

607
00:37:29,560 --> 00:37:33,200
Speaker 1: the civil rights complaint to the California State Agency and

608
00:37:33,600 --> 00:37:38,880
Speaker 1: invoking California employment laws simultaneously. Lively's complaint, which is filed

609
00:37:38,880 --> 00:37:41,720
Speaker 1: in New York, does allege that much of the conduct

610
00:37:41,800 --> 00:37:45,400
Speaker 1: between the parties occurred in New York. Lively and her husband,

611
00:37:45,440 --> 00:37:47,719
Speaker 1: Ryan Reynolds, have a residence in New York, and I

612
00:37:47,760 --> 00:37:51,000
Speaker 1: believe a lot of the business transactions occurred in New York.

613
00:37:51,560 --> 00:37:53,960
Speaker 3: How do you think this goes down? What happens next?

614
00:37:54,239 --> 00:37:56,040
Speaker 1: All these people who are soon have to respond to

615
00:37:56,080 --> 00:37:59,720
Speaker 1: their complaints, right, that's a lot of people. Another fascinating

616
00:37:59,719 --> 00:38:02,279
Speaker 1: as aspect of this case is that we've talked about

617
00:38:02,360 --> 00:38:05,800
Speaker 1: essentially three legal complaints. There were actually four legal complaints

618
00:38:05,800 --> 00:38:10,400
Speaker 1: in ten days because the original PR firm that Baldoni

619
00:38:10,760 --> 00:38:14,000
Speaker 1: was engaged with, the owner of that firm has sued

620
00:38:14,040 --> 00:38:17,520
Speaker 1: her former employee, who is one of the publicists we've

621
00:38:17,520 --> 00:38:20,120
Speaker 1: been speaking about, for breach of contract, and she's also

622
00:38:20,200 --> 00:38:23,200
Speaker 1: sued Baldoni. So, like I said, all of these individuals

623
00:38:23,239 --> 00:38:26,200
Speaker 1: that have been served with lawsuits have to respond, taking

624
00:38:26,239 --> 00:38:29,200
Speaker 1: them one at a time. I think the lawsuit against

625
00:38:29,200 --> 00:38:31,960
Speaker 1: The New York Times is going to be one that's

626
00:38:32,280 --> 00:38:35,480
Speaker 1: more likely to be handled on a procedural basis. The

627
00:38:35,480 --> 00:38:37,520
Speaker 1: New York Times can bring an anti slap action, and

628
00:38:37,560 --> 00:38:43,480
Speaker 1: it has successfully done so with respect to other similar lawsuits,

629
00:38:43,480 --> 00:38:47,160
Speaker 1: including one by Donald Trump. They also have defenses with

630
00:38:47,200 --> 00:38:51,400
Speaker 1: respect to the defamation action because there is a requirement

631
00:38:51,560 --> 00:38:56,520
Speaker 1: that Baldonis show malice, and there's a serious question as

632
00:38:56,520 --> 00:39:01,000
Speaker 1: to whether his complaint even attempts to do that. For example,

633
00:39:01,120 --> 00:39:06,320
Speaker 1: there's numerous times where Baldoni presents a longer version of

634
00:39:06,360 --> 00:39:09,480
Speaker 1: a text message that Lively had produced in her complaint.

635
00:39:09,480 --> 00:39:12,319
Speaker 1: But the longer version of the text message doesn't necessarily

636
00:39:12,760 --> 00:39:16,520
Speaker 1: contradict what it is Lively is at her core alleging

637
00:39:16,800 --> 00:39:19,520
Speaker 1: in her complaint. It just provides more context as to

638
00:39:19,560 --> 00:39:22,399
Speaker 1: what these people were talking about. Really briefly, there's an

639
00:39:22,440 --> 00:39:28,560
Speaker 1: example of Lively producing a text message between the publicists

640
00:39:28,600 --> 00:39:31,439
Speaker 1: that does not include an emoji, which we can see

641
00:39:31,520 --> 00:39:35,239
Speaker 1: is because these were forensically pulled, and Baldoni producing a

642
00:39:35,239 --> 00:39:39,279
Speaker 1: separate version that includes an upside down emoji and indicating

643
00:39:39,320 --> 00:39:42,400
Speaker 1: that that upside down emoji indicates the text message was

644
00:39:42,440 --> 00:39:45,960
Speaker 1: sarcastic and that The New York Times should have noted

645
00:39:46,000 --> 00:39:50,160
Speaker 1: that that is going to be challenging to parlay into

646
00:39:50,520 --> 00:39:54,160
Speaker 1: actual malice, which is necessary to bring a defamation suit

647
00:39:54,360 --> 00:39:55,719
Speaker 1: on a public matter like this.

648
00:39:56,239 --> 00:39:58,200
Speaker 3: Do you think a settlement is likely here?

649
00:39:58,640 --> 00:40:01,880
Speaker 1: No? I don't think so. I believe these complaints were

650
00:40:01,920 --> 00:40:05,040
Speaker 1: in part filed because each of these parties needed to

651
00:40:05,080 --> 00:40:08,640
Speaker 1: tell their story in light of the other content about

652
00:40:08,640 --> 00:40:12,640
Speaker 1: them out there, and now that that's happened, I see

653
00:40:12,680 --> 00:40:17,560
Speaker 1: an expectation that that process continue. I don't know anybody's motivations,

654
00:40:17,600 --> 00:40:20,239
Speaker 1: but the overall story does not indicate that any of

655
00:40:20,280 --> 00:40:24,000
Speaker 1: these actors primarily file their lawsuits for money, and settlement

656
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Speaker 1: typically only gets you money. They can't change the public perception.

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Speaker 3: So then a lot more to come in this particular

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Speaker 3: Hollywood drama. Thanks so much, Nishe. That's nische Verma of

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Speaker 3: Dorsey and Whitney. In other legal news today, President elect

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Speaker 3: Donald Trump has lost his bid to get his conviction

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Speaker 3: in the New York hush money case thrown out before

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Speaker 3: his inauguration later this month. On Friday, Judge Juan Mrshon

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Speaker 3: refused to toss the jury verdict, joining me is Bloomberg

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Speaker 3: Legal reporter Eric Larson. Eric tell us why the judge

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Speaker 3: made this decision.

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Speaker 8: Judge Marshawan said that Trump was essentially requesting to expand

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00:41:03,920 --> 00:41:07,520
Speaker 8: what we already know of its presidential immunity from criminal

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00:41:07,600 --> 00:41:12,840
Speaker 8: prosecution to extend that to president elect, and the judge

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Speaker 8: indicated this, you know, was unprecedented. There has never been

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00:41:15,960 --> 00:41:19,520
Speaker 8: a case like this before, and that the established presidential

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00:41:19,520 --> 00:41:23,080
Speaker 8: immunity for a sitting president has never been extended to

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00:41:23,160 --> 00:41:25,319
Speaker 8: a president elect. And the judge that there was no

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Speaker 8: reason to do that. Now, did you.

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Speaker 3: Find any of Trump's arguments to have a jury verdict

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Speaker 3: thrown out persuasive?

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Speaker 8: Trump's lawyer essentially disappointed to the established president for a

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00:41:38,680 --> 00:41:43,280
Speaker 8: sitting president being protected from criminal prosecution, you know, saying

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Speaker 8: that previous Supreme Court president and the Justice Department's own

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00:41:47,760 --> 00:41:52,280
Speaker 8: internal policies on prosecuting a sitting president that they relate

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00:41:52,360 --> 00:41:56,880
Speaker 8: to the imposition of a criminal sentence essentially being a

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00:41:56,960 --> 00:42:00,840
Speaker 8: bad look for a president because of the stigma associated

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00:42:00,880 --> 00:42:04,799
Speaker 8: with it and also the mental and physical demands associated

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Speaker 8: with the defendant helping prepare for their defense, that all

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00:42:07,880 --> 00:42:11,080
Speaker 8: of that would interfere with the president's duties. And I

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00:42:11,120 --> 00:42:14,399
Speaker 8: think that in Trump's view, he's saying that while he's

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Speaker 8: not a sitting president, that he has so much work

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00:42:17,800 --> 00:42:20,800
Speaker 8: to do and that he has so much responsibilities as

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00:42:20,840 --> 00:42:24,360
Speaker 8: a president elect, that essentially the same protection should be

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Speaker 8: extended to him for the same reason. But Judge Marson

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00:42:29,280 --> 00:42:33,280
Speaker 8: just wasn't having that and said that he was forbidden.

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Speaker 8: The judge that he was forbidden from recognizing any the

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00:42:36,640 --> 00:42:40,279
Speaker 8: presidential elect community, saying that that would essentially be a

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00:42:40,360 --> 00:42:45,200
Speaker 8: retroactive dismissal of criminal charges against a defendant who happened

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00:42:45,239 --> 00:42:48,440
Speaker 8: to be elected president after they were convicted, and that

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00:42:48,520 --> 00:42:49,880
Speaker 8: he just wasn't going to do that.

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Speaker 3: And the judge set a sentencing date for next Friday,

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00:42:53,840 --> 00:42:55,879
Speaker 3: and he also.

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00:42:55,680 --> 00:42:58,920
Speaker 8: Took the unusual step of indicating in this ruling that

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00:42:59,000 --> 00:43:03,280
Speaker 8: he has no intention of sentencing Trump to any period

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00:43:03,280 --> 00:43:05,880
Speaker 8: of time behind bars, and as we know, for the

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00:43:05,920 --> 00:43:08,759
Speaker 8: crimes that Trump was convicted of, he faces as long

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00:43:08,800 --> 00:43:12,600
Speaker 8: as four years behind bars. Many legal experts, even before

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00:43:12,600 --> 00:43:16,000
Speaker 8: Trump won the election, predicted that all things being equal,

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00:43:16,160 --> 00:43:19,759
Speaker 8: he probably would get far less time behind bars than that,

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00:43:19,880 --> 00:43:22,480
Speaker 8: or probably more likely no time, and it would just

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00:43:22,520 --> 00:43:26,680
Speaker 8: be probation. So it's not a huge surprise that the

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00:43:26,800 --> 00:43:29,600
Speaker 8: judge is saying he's not going to sentence him to

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00:43:29,680 --> 00:43:32,520
Speaker 8: time behind bars, but he did take the unusual step

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00:43:32,520 --> 00:43:35,279
Speaker 8: of signaling that just so everyone is aware that he's not,

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00:43:35,560 --> 00:43:39,320
Speaker 8: on January tenth, going to be sentencing Trump to prison.

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Speaker 8: But of course that leads up in the air what

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00:43:41,520 --> 00:43:43,480
Speaker 8: the sentence will be, if it could be a period

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00:43:43,520 --> 00:43:46,160
Speaker 8: of probation or something like that. All of that would

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00:43:46,200 --> 00:43:49,640
Speaker 8: also be unprecedented for Trump to have a sentence of

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Speaker 8: any kind handed down, you know, ten days before his inauguration,

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Speaker 8: So we can expect, probably I would think, a very

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00:43:57,239 --> 00:44:01,040
Speaker 8: quick attempt at appealing, but it's uncle exactly how that's

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00:44:01,040 --> 00:44:04,600
Speaker 8: playing your work. You can't appeal the verdict itself properly

719
00:44:04,719 --> 00:44:09,160
Speaker 8: until he is sentenced. He may be able to appeal disruling,

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Speaker 8: so we'll have to wait and see on that. And

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Speaker 8: by the way, that judge gave Trump until January fifth

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Speaker 8: to decide whether or not he wanted to appear in

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Speaker 8: court for the sentencing or appear virtually.

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Speaker 3: I know you'll be there, Eric, thanks so much. That's

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Speaker 3: Bloomberg Legal reporter Eric Larson, and that's it for this

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Speaker 3: edition of The Bloomberg Law Show. Remember you can always

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00:44:28,280 --> 00:44:31,239
Speaker 3: get the latest legal news on our Bloomberg Law Podcast.

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00:44:31,480 --> 00:44:34,520
Speaker 3: You can find them on Apple Podcasts, Spotify, and at

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00:44:34,680 --> 00:44:39,719
Speaker 3: www dot Bloomberg dot com slash podcast Slash Law, And

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00:44:39,800 --> 00:44:42,840
Speaker 3: remember to tune into The Bloomberg Law Show every weeknight

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Speaker 3: at ten pm Wall Street Time. I'm June Grosso and

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00:44:46,440 --> 00:44:47,920
Speaker 3: you're listening to Bloomberg