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

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Speaker 1: The answer is, I always abide by the courts, always

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Speaker 1: abide by.

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Speaker 2: It, and will appeal.

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Speaker 1: I never did defy a court order school.

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Speaker 3: I always abide by the courts, and then I'll have

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Speaker 3: to appeal it.

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Speaker 4: President Trump has said repeatedly that he always obeys court orders,

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Speaker 4: but critics say there is evidence that his administration has

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Speaker 4: not been obeying court orders, even those of the Supreme Court,

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Speaker 4: and it appears the justices have had enough. Thus, the

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Speaker 4: Supreme Court issued an emergency order with incredible speed in

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Speaker 4: extraordinary circumstances last Saturday at one in the morning, within

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Speaker 4: just eight hours of getting an application, before the government

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Speaker 4: had time to respond, before the Fifth Circuit issued its ruling,

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Speaker 4: and before Justice Samuel Alito could finish writing his dissent,

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Speaker 4: the Supreme Court ordered the government not to deport any

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Speaker 4: of the Venezuelan detainees until further notice, and only the

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Speaker 4: two most conservative justices dissented. My guest is constitutional law

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Speaker 4: expert Michael Dorf, a professor at Cornell Law School. Mike

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Speaker 4: this order in the middle of the night, without following

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Speaker 4: normal procedures like waiting for the government's response and the

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Speaker 4: Fifth Circuit's decision and Justice Alito's dissent. Does this show

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Speaker 4: that the justices don't trust the Trump administration to obey

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Speaker 4: their orders.

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Speaker 1: Absolutely. The Court had in an earlier case said that

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Speaker 1: the government should not remove any of the Venezuelans without

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Speaker 1: first giving them notice and an opportunity to file a

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Speaker 1: habeas corpus petition. Here, the Venezuelans who were being held

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Speaker 1: in Texas received notices in English, which most of them

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Speaker 1: don't speak or read, saying that they would be removed

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Speaker 1: in an There was no mention of the right to

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Speaker 1: file a havias petition, and so when the foul District

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Speaker 1: Judd didn't act within just over two hours, the lawyers

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Speaker 1: realized that the government might move the case by taking these.

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Speaker 5: People out of the country sending them to Salvador, and

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Speaker 5: so they went to the Supreme Court seeking emergency relief.

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Speaker 5: The fact that the justices acted when they did in

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Speaker 5: the middle of the night so quickly without the response,

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Speaker 5: as you say, I think, clearly indicates at least sevenjustices

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Speaker 5: felt the same way as the lawyers did for these Venezuelans.

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Speaker 1: Namely, the government couldn't be trusted to abide by the

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Speaker 1: Justice's previous command.

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Speaker 4: It was a short order, eleven lines, no explanation, but

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Speaker 4: Justice Alito's scathing descent was five pages. He objected to

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Speaker 4: granting what he called unprecedented and legally questionable relief, saying,

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Speaker 4: we had no good reason to think that under the circumstances,

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Speaker 4: issuing an order at midnight was necessary or appropriate. Does

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Speaker 4: this mean he still believes that the Trump administration is

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Speaker 4: listening to orders of courts?

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Speaker 1: Well, it either means that he believes that or he

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Speaker 1: doesn't care, right, I mean, he might think that whether

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Speaker 1: or not the administration is going to comply, we meaning

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Speaker 1: the Court, have to abide by our procedural rules, and

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Speaker 1: got every eye across every t In fact, what he

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Speaker 1: said at the end of his assent was, you know,

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Speaker 1: the executive branch needs to apply to the law, but

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Speaker 1: so do we. What he didn't say, of course, was well,

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Speaker 1: what happens if the executive branch isn't complying with judicial orders?

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Speaker 1: Does that mean, as the majority clearly thought, that you

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Speaker 1: take extraordinary measures.

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Speaker 4: President Trump and the administration continue to say that they'll

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Speaker 4: follow court orders, they're obeying court orders. Trump did complain

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Speaker 4: Monday on being stymied at every turn by the courts,

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Speaker 4: and said the administration can hold trials for every detainee

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Speaker 4: they want to report, because it would take two hundred years.

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Speaker 6: First, I think it's inarguable that they are not fully

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Speaker 6: complying with orders of the lower courts, and there is

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Speaker 6: pretty good evidence that they are not complying in good

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Speaker 6: faith with the Supreme Court. So, in addition to not

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Speaker 6: giving the Venezuelans the notice to which they are entitled,

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Speaker 6: the administration in the Abrago Garcia case.

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Speaker 1: Has flatly refused to comply with its obligation said by

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Speaker 1: the Supreme Court to facilitate his return.

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Speaker 6: With respect to the President's claim that, you know, giving

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Speaker 6: these migrants due process would be a too onerous burden

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Speaker 6: that assumes that what they're entitled to is a kind

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Speaker 6: of full dress criminal trial, that's not true. There are

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Speaker 6: statutory guidelines that allow for very much expedited hearings, but

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Speaker 6: they do require some kind of a hearing. You can't

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Speaker 6: just have.

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Speaker 1: People in unmarked vans scooping people up off the street

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Speaker 1: and then shipping them off to a foreign country that's

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Speaker 1: not even their home country. When there are, as an

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Speaker 1: abrago Garcia's case, court orders forbidding that, or, as in

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Speaker 1: some of these other cases, no real evidence that they

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Speaker 1: are subject to deportation at this point. Now, having said that.

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Speaker 6: President Trump is right that if he were to attempt

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Speaker 6: the kind of massive deportation of everybody in the United

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Speaker 6: States who entered undocumented, that it would be difficult to

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Speaker 6: do that in a timely manner because there are procedures

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Speaker 6: that have to be followed. But he also doesn't have

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Speaker 6: the manpower. He doesn't come to budget.

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Speaker 1: Do anything like that.

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Speaker 4: Anyway, Trump and the administration have been steadfast in saying

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Speaker 4: that they're not going to bring Garcia back, but they're

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Speaker 4: also blaming it on the President of l Salvador.

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Speaker 6: Yeah, I mean, I think that is in pretty clear

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Speaker 6: defiance of at least the federal district judges order. Now

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Speaker 6: you can say that in the earlier case that all

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Speaker 6: the Supreme Court did was to ask the federal district

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Speaker 6: judge to clarify what she meant by facilitate. But you know,

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Speaker 6: the court pretty clearly approved of the obligation for facilitation,

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Speaker 6: and you know, there was a remarkable decision by a

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Speaker 6: unanimous pre judge panel of the Fourth Circuit, in which

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Speaker 6: Judge J. Harvey Wilkinson, the third who's a very conservative

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Speaker 6: appointee of Ronald Reagan, really called the administration to task

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Speaker 6: for doing literally nothing to facilitate a Brego Garcia's return

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Speaker 6: and warned in pretty ominous terms of the potential death

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Speaker 6: of the law here. So you know, in the face

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Speaker 6: of that, the Trump administration is continuing nonetheless to you know,

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Speaker 6: simply not do anything for Abrego Garcia. And what's so

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Speaker 6: remarkable about this is that, you know, they could say, well,

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Speaker 6: we're going to comply, and then ask the President of

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Speaker 6: El Salvador, hey, can we.

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Speaker 1: Have Abregio Garcia back, and he might then say, well, no,

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Speaker 1: I'd really rather keep him, because, after all, he is

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Speaker 1: at El Salvador in national now it's fruit. We sent

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Speaker 1: him back there by a mistake, and there was a

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Speaker 1: judicial order forbidding that, but that order doesn't bind the

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Speaker 1: government of El Salvador. But the Trump administration isn't even

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Speaker 1: willing to ask, and they could they could ask. This

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Speaker 1: wouldn't be good faith compliance, but they could ask while winking,

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Speaker 1: and then they could go back to the judge and said.

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Speaker 6: Well, we asked, and he said no. But they're not

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Speaker 6: even willing to do that.

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Speaker 1: Because they see this as a matter of power politics.

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Speaker 4: I mean, until now, the conservative justices have been giving

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Speaker 4: Trump narrow procedure yer wins that have allowed him to,

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Speaker 4: for the most part, run his agenda. Does this mark

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Speaker 4: a turning point in the majority's approach to the administration,

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Speaker 4: I hope so.

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Speaker 6: I have been highly critical of the Roberts Court for

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Speaker 6: some time now for treating Donald Trump as an individual

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Speaker 6: and his administration in their official capacity, treating them the

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Speaker 6: way you would treat any president who you know, occasionally

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Speaker 6: pushes the edge of the envelope of their authority, but

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Speaker 6: then when subject to a ruling, complies, which has been

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Speaker 6: true of every Democratic and Republican president, you know, for

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Speaker 6: as long as we can remember, accepting extraordinary circumstances like

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Speaker 6: Lincoln during the.

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Speaker 1: Civil War something like that. The one that was sort

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Speaker 1: of most disturbing to me was the immunity ruling last year,

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Speaker 1: which the Court said, well, you know, we don't want

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Speaker 1: to amstring the president because in the future there might

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Speaker 1: be you know, sort of tit for tab retaliation against

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Speaker 1: former presidents back to lead to all sorts of trouble,

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Speaker 1: sort of thinking about the long term and ignoring what

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Speaker 1: is essentially an emergency right in front of them. And

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Speaker 1: I was a little concerned that that was what was

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Speaker 1: going on in the last few months, as this second

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Speaker 1: roup administration proved to be much more radical than the first.

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Speaker 1: But it looks like and I'm hopeful that, you know,

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Speaker 1: the Court is beginning to realize that they're not dealing

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Speaker 1: with a normal, law abiding president and administration, but a

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Speaker 1: you know, a person who's seriously threatening constitutional democracy, and

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Speaker 1: that they need to stand up to him.

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Speaker 4: The Court announced a special session on May fifteenth to

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Speaker 4: hear arguments on Trump's executive order upending birthright citizenship. Why

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Speaker 4: would the Court agree to hear a case like that

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Speaker 4: outside its regular schedule when all three lower courts that

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Speaker 4: considered it ruled against the administration, finding the executive order unconstitutional.

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Speaker 6: Well, you know, the Court did not take the case

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Speaker 6: to decide the substance issue, but the Solicitor General didn't

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Speaker 6: even ask the Court to decide the subside of issue.

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Speaker 6: All of the Court is deciding is the authority of

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Speaker 6: a federal district judge to give a so called nationwide

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Speaker 6: injunction that has been a long running source of controversy

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Speaker 6: actually in both Democratic and Republican administrations. It's been frustrating

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Speaker 6: to presidents of either party when a single federal district judge,

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Speaker 6: often selected by the plaintiffs because they know their ideological leanings,

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Speaker 6: you can do a little bit of forum shopping or

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Speaker 6: even judge shopping by deciding where to file, but a

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Speaker 6: single district judge, so it sets nationwide policy, at least

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Speaker 6: for the short run.

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Speaker 1: And so some of the justices have for a long

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Speaker 1: time been concerned about this phenomenon. I think that it's

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Speaker 1: extremely unlikely that the Court will in this case rule

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Speaker 1: on and the birthright citizenship issue as a substantive matter.

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Speaker 6: Now, that doesn't stop the media or actually even President

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Speaker 6: Trump from portraying this as something else entirely. So, you know,

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Speaker 6: as soon as the Court announced that it was going

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Speaker 6: to hear argument, Trump said something like, well, you know,

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Speaker 6: this is very misunderstood. That's about slavery. He said by

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Speaker 6: that he was referring to the birthright citizenship clause of

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Speaker 6: the fourteenth Amendment. So he seems to think, or at

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Speaker 6: least he's saying, that this case is about the substance.

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Speaker 4: But it really isn't, and it may actually lengthen the

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Speaker 4: Supreme Court's term. Thanks so much, Mike Best. Professor Michael

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Speaker 4: Dworf of Cornell Law School. Coming up next, the Supreme

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Speaker 4: Court considers parents religious objections to LGBGQ friendly children's books.

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Speaker 4: I'm June Grosso. When you're listening to Bloomberg. Uncle Bobbie's

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Speaker 4: Wedding is the story of a same sex wedding where

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Speaker 4: a niece worries that her uncle won't have as much

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Speaker 4: time for her after he gets married. It's one of

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Speaker 4: a handful of children's books with LGBTQ characters at the

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Speaker 4: center of a Supreme Court case, but the oral arguments

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Speaker 4: seem more like a contentious book club. When Liberal Justice

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Speaker 4: Sonya Sotmayor and conservative Justice Samuel Leto gave competing interpretations

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Speaker 4: of the book, and the Chief Justice had to intervene.

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Speaker 3: Two men Little Bob Bobby's Wedding where they're getting married.

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Speaker 3: One is black and one is white. In this rendition

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Speaker 3: of the book, I had one with mice. The two

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Speaker 3: male mice looked identical to me. Is looking at two

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Speaker 3: men getting married? Is that the religious objection?

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Speaker 2: I don't think anybody can read that and say, well,

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Speaker 2: this is just telling children that there are occasions when

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Speaker 2: men marry other men. Uncle Bobby gets married to his

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Speaker 2: boyfriend Jamie, and everybody's happy and everything is you know,

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Speaker 2: it portrays this. Everyone accepts this, except for the little

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Speaker 2: girl Chloe, who has reservations about it. But her mother

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Speaker 2: corrects her, Now, you shouldn't have any reservations about this.

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Speaker 2: As I said, it has a clear mora, It has

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Speaker 2: a clear moral message.

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Speaker 3: Just answer my question is looking at the pictures, is

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Speaker 3: there any affidavit from any parent that merely looking at

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Speaker 3: people getting married holding hands, None of them are even

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Speaker 3: kissing at any of these books. The most they're doing

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Speaker 3: is holding hands. That mere exposure to that is coercion.

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Speaker 4: Welcome back to the culture wars at the Supreme Court

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Speaker 4: where several parents are objecting to incorporating the LGBTQ friendly

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Speaker 4: books into the elementary school curriculum on religious grounds, and

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Speaker 4: after two and a half hours of oral arguments, it

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Speaker 4: seems clear that the conservative justice is will rule for

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Speaker 4: the public school parents. My guest is first Amendment law

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Speaker 4: expert Caroline Mala Corbin, a professor at the University of

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Speaker 4: Miami Law School, Caroline, these books are not about religion,

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Speaker 4: their stories with LGBTQ characters. Yeah.

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Speaker 7: So, basically, the case that the Supreme Court heard oral

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Speaker 7: argument on Tuesday morning concern a religious liberty challenge brought

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Speaker 7: by parents who argued that they had a constitutional free

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Speaker 7: exercise right to prevent their children from reading books with

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Speaker 7: LGBTQ characters. And from the tenor of the argument, it

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Speaker 7: does seem quite likely that the Supreme Court will agree

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Speaker 7: with them and grant them this as a constitutional right.

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Speaker 4: Do the conservative justices readily accept the the idea that

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Speaker 4: these books about a same sex wedding, about a puppy

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Speaker 4: that gets lost at an LGBTQ pride parade, and a

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Speaker 4: young child whose gender identity doesn't match his birth assigned sex,

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Speaker 4: that these books violate the religious beliefs of the parents.

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Speaker 7: So definitely, the parents bringing them are religiously conservative, although

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Speaker 7: they're not only Christian. I think there are also some

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Speaker 7: Muslim parents as well. And the Justices very much accepted

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Speaker 7: the idea that having children read these books would impose

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Speaker 7: a substantial burden on the parents free exercise, which is

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Speaker 7: a stunning expansion of what it means for the government

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Speaker 7: to impose a substantial burden on someone's religious exercise. So originally,

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Speaker 7: when we thought about government imposed burdens, it would be

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Speaker 7: something and like the government is preventing you from observing

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Speaker 7: a tenant of your faith, Like the government made it

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Speaker 7: impossible for you to observe your sabbath or participate in

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Speaker 7: the sacramental use of pyote, something that was really a

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Speaker 7: central religious practice. The Rabbits Court has already expanded what

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Speaker 7: counts as a substantial burden to not just view yourself

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Speaker 7: violating a religious tenant, but for someone to endorse or

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Speaker 7: facilitate a third party's violation of religious tenants. So we

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Speaker 7: have the Supreme Court being very sympathetic to people who

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Speaker 7: argue that baking a cake for a same sex wedding

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Speaker 7: would be akin to endorsing the sin of same sex

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Speaker 7: marriage or facilitating the sin of same sex marriage.

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Speaker 8: That first expansion was.

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Speaker 7: Its off already quite a broad reading of what counts

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Speaker 7: as a substantial burden. But what we may see after

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Speaker 7: the Supreme Court hands down its decision in this case

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Speaker 7: is just hearing about people who act in a way

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Speaker 7: as contrary to your religious tenants suffices to be a

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Speaker 7: substantial religious burden, because that's ultimately what's going on in.

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Speaker 8: These public schools.

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Speaker 7: The children are hearing about the existence of two men

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Speaker 7: getting married, or they become aware that there are transgender

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Speaker 7: people in the world, and if that information is not

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Speaker 7: accompanied by a condemnation of it, then it seemed like

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Speaker 7: there were five justices who thought that that could amount

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Speaker 7: to a very serious infringement on the parents' free exercise rights.

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Speaker 7: I am willing to bet that there are at least

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Speaker 7: five justices who thought that there is a free speech

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Speaker 7: violation here.

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Speaker 4: So what were the main concerns of the conservatives.

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Speaker 7: The main concern was that they were hearing about LGPT

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Speaker 7: community without hearing the condemnation of it, and therefore, in

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Speaker 7: their eyes, that equates to indoctrinating their children into accepting

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Speaker 7: gay people or transgender people, and that is contrary to

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Speaker 7: their own religions which condemn them.

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Speaker 4: Justice Sodo Mayor said, haven't we made it very clear

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Speaker 4: that the mere exposure to things that you object to

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Speaker 4: is not coercion? And then she talked about this book

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Speaker 4: Uncle Bobby's Wedding, and she said that none of them

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Speaker 4: are even kissing in any of these books. And then

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Speaker 4: Justice Alito actually read from the book, saying there was

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Speaker 4: a clear moral message.

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Speaker 7: His argument was, this book not only articulates that these

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Speaker 7: people exist, but it also conveys the message that these

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Speaker 7: people are people, and they're okay, and there's nothing wrong

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Speaker 7: with two men marrying each other. And that is what

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Speaker 7: he equates to indoctrination of children in the classroom, which,

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Speaker 7: of course is not the only way to think about

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Speaker 7: what those books are doing. One of the central goals

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Speaker 7: of the public schools system is to train children to

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Speaker 7: live in a democracy, and one of the preconditions for

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Speaker 7: us all coexisting together is that we learn that we're

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Speaker 7: not all alike, and that even if there are people

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Speaker 7: who are different from us, we should still treat them

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Speaker 7: with dignity and humanity and record them the same respect

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Speaker 7: that we ourselves would to receive. And so I think

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Speaker 7: the reason the school included these books in the first

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Speaker 7: place is to try and teach that very basic civic

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Speaker 7: lesson to little kids.

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Speaker 8: But that message that.

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Speaker 7: These books, again, they're surprisingly innocuous. I think the main

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Speaker 7: point of Uncle Bobby's wedding was that she was a

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Speaker 7: little upset her favorite uncle might get married and she

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Speaker 7: wouldn't get to hang out with him anymore. And the

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Speaker 7: message she learned is she.

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Speaker 8: Didn't lose an uncle, She'd got another one.

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Speaker 7: You know, that kind of message you often see in

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Speaker 7: children's books. But again, the very presentation of the LGBT

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Speaker 7: community as regular people who we should not condemn as

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Speaker 7: doing something against I don't know, God's orders is considered

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Speaker 7: to be unacceptable to the religiously conservative families.

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Speaker 4: And the author of Uncle Bobby's Wedding, Sarah Brennan, told

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Speaker 4: Slay that she was dismayed by the way Justice Alito

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Speaker 4: characterized the book and that Justice Sodomayor really understood the

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Speaker 4: book's message. And all three of the liberal justices focused

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Speaker 4: on the line drawing problems presented by this.

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Speaker 7: Case, because again, the principle that they were arguing for is,

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Speaker 7: if there is something in the curriculum that a religious

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Speaker 7: parent objects to on the grounds that it is contrary

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Speaker 7: to their own faith, that they have the right to

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Speaker 7: know an advance that that it's going to be taught,

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Speaker 7: and the right to.

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Speaker 8: Pull their children from the classroom. So there was no.

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Speaker 7: Limit by age, there was no limit by subject matter.

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Speaker 7: And of course we live in a magnificently diverse country

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Speaker 7: where people have all different kinds of beliefs, And so

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Speaker 7: there was one line of questioning, is, well, what if

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Speaker 7: parents object to interracial marriages get noticed and would have had.

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Speaker 8: Of some object to interfaith marriages.

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Speaker 7: What if some belong to religions that oppose having women

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Speaker 7: who work outside of the home, are they now entitled

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Speaker 7: to notice any time there is a social studies class

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Speaker 7: or a literagy class that features a woman who's worked

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Speaker 7: outside of the home. What about parents who believe in

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Speaker 7: the literal interpretation of the Bible and take that to

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Speaker 7: mean that evolution is false? Does that mean that they

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Speaker 7: can pull their kids from the evolution section of a

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Speaker 7: biology class? Or and this is another question that was asked,

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Speaker 7: what if a parent objects to a teacher using the

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Speaker 7: appropriate pronoun for a transgender child in the class, does

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Speaker 7: that mean that they can say, I don't want my

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Speaker 7: child in this class, I'm entitled to a completely different teacher.

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Speaker 7: And the lawyer for the parents did concede that yes,

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Speaker 7: there were some parents who would find that to be

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Speaker 7: the substantial burden on their own religious exercise if the

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Speaker 7: teacher uses appropriate pronouns for another transgender child in the class.

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Speaker 4: So what's the question the court is going to answer.

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Speaker 7: Well, the questions before them is are these parents entitled

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Speaker 7: under the.

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Speaker 8: Free exercise Clause.

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Speaker 7: To have the right of notice and the right to.

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Speaker 8: Off their children out?

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Speaker 7: How the court gets there may depend on which route

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Speaker 7: the court takes. We've been focusing on a very traditional

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Speaker 7: one where the court says, well, this law is not

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Speaker 7: neutral and generally applicable, it's sort of targeting religion. Second

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Speaker 7: is does this requirement does this book impose a substantial

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Speaker 7: burden on the parents' right to practice their religion? And finally,

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Speaker 7: is there a compelling government interest that everyone read this book?

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Speaker 8: And is there no other way.

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Speaker 7: The school can accomplish It's really important government interests that

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Speaker 7: don't infringe on the religious parents' rights. So one way

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Speaker 7: or another, the Quarter is going to say distant fringes

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Speaker 7: on people's religion, and the government can't justify insisting on

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Speaker 7: reading these books because ultimately they could read other books.

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Speaker 4: So we'll see which way the justices get to that

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Speaker 4: seemingly inevitable conclusion. Thanks so much, Caroline. That's Professor Caroline

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Speaker 4: Malcorbin of the University of Miami Law School coming up.

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Speaker 4: Sarah Palin loses her defamation case again. I'm June Grosso.

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Speaker 4: When you're listening to Bloomberg. Former Alaska Governor Sarah Palin

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Speaker 4: became well known in two thousand and eight as a

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Speaker 4: late John McCain's vice presidential running mate. She also became

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Speaker 4: well known for a series of verbal slips, gaffs, and

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Speaker 4: generally cringe worthy moments. There are next door neighbors, and

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Speaker 4: you can actually see Russia from land here in Alaska.

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Speaker 9: Obviously got to stand with our North Korean allies. We're

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Speaker 9: bound to by trees were bound by.

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Speaker 1: Yeah, I told.

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Speaker 9: Congress, thanks, but no thanks for that bridge.

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Speaker 3: To nowhere up in Alaska.

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Speaker 4: Since then, palin star has gradually faded, although the spotlight

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Speaker 4: returned to her in twenty seventeen when she sued The

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Speaker 4: New York Times for defamation over an editorial. But this week,

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Speaker 4: for the second time, Manhattan Jerry found that The Times

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Speaker 4: did not defame Palin. Joining me is an expert in

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Speaker 4: First Amendment law. Samantha Barbis, a professor of law at

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Speaker 4: the University of Iowa College of Law, tell us why

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Speaker 4: Palin sued the Times.

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Speaker 9: So this story goes back to twenty eleven, when there

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Speaker 9: was a tragic shooting of Representative Gabby Giffords in Arizona,

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Speaker 9: and six years later there was another tragic shooting at

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Speaker 9: a baseball game in which various Republican politicians were participating

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Speaker 9: and the congressman was hit. In the day after that,

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Speaker 9: the New York Times ran an editorial in which it

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Speaker 9: suggested that there was a link between kind of violent

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Speaker 9: political environment that various people were promoting and these tragic

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Speaker 9: mass shootings. In particular, it pointed to a digital graphic

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Speaker 9: that had been produced by Sir Palin's Political Action Committee

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Speaker 9: I think back in twenty eleven, around the time of

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Speaker 9: the Arizona shooting, and that graphic us crosshairs to target

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Speaker 9: various congressional districts that I guess Palin was interested in

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Speaker 9: focusing on, interested in having her campaign focus on these

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Speaker 9: democratic political districts. But The New York Times suggested that

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Speaker 9: that was actually kind of an incitement to violence, the

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Speaker 9: use of crosshairs and inciting people to take disho's action

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Speaker 9: against their political enemies. And so the Times effectively linked

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Speaker 9: that graphic to the shooting of Gabby Gifford in Arizona,

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Speaker 9: and Sarah Palin said that this was false, that her

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Speaker 9: political action committee had nothing to do with the shooting,

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Speaker 9: and that her reputation was injured. She was the famed,

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Speaker 9: and that's the origin of her libel claim against The.

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Speaker 6: New York Times.

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Speaker 4: This legal fight has been going on for eight years now,

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Speaker 4: and this is the second time that a jury has

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Speaker 4: heard the case and ruled against her. What happened the

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Speaker 4: first time.

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Speaker 9: Importantly, the standard here is actual malice. So because Sarah

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Speaker 9: Palin is a public figure, she had to show that

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Speaker 9: the false statement was made with reckless disregarding the truth,

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Speaker 9: so that the Times either knew the statement was false

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Speaker 9: and published in any way, or had really strong reason

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Speaker 9: to believe that the statement was untrue. So the first

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Speaker 9: time this was in twenty twenty two. You know, during

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Speaker 9: the trial, the evidence was presented about what the Time

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Speaker 9: opinion page editor knew and did not know when this

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Speaker 9: editors oriole was issued, and the judge, Judge Raycoff, at

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Speaker 9: the close of the trial suggested that even if the

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Speaker 9: jury found for Sarah Palin, he would set aside the decision.

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Speaker 9: And while the jury was deliberating, apparently they were notified

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Speaker 9: of Judge Raycoff's pronouncement. If you would satisfy the verdicts,

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Speaker 9: and some of them even got push notifications on their

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00:28:26,840 --> 00:28:30,680
Speaker 9: phones about this. They obviously found in favor of The Times,

441
00:28:30,840 --> 00:28:37,640
Speaker 9: and Sarah Palin keealed, suggesting that these procedural irregularities narrated

442
00:28:37,760 --> 00:28:40,840
Speaker 9: a new trial, and that's why we had the trial

443
00:28:41,200 --> 00:28:42,600
Speaker 9: that concluded days ago.

444
00:28:43,200 --> 00:28:46,640
Speaker 4: The person in charge of the Times opinion section admitted

445
00:28:46,680 --> 00:28:49,960
Speaker 4: he'd made a mistake, said he acted quickly to rectify it.

446
00:28:50,280 --> 00:28:54,320
Speaker 4: So was the main question for the jury whether he

447
00:28:54,360 --> 00:28:56,760
Speaker 4: acted with reckless disregard for the truth?

448
00:28:57,200 --> 00:29:01,080
Speaker 9: Yeah, So again the issue was is what did the

449
00:29:01,120 --> 00:29:05,560
Speaker 9: Times editor know at the time he made the decision

450
00:29:05,640 --> 00:29:09,680
Speaker 9: to publish this editorial. Did he know that these statements

451
00:29:09,680 --> 00:29:13,920
Speaker 9: were false connecting Palin to the shooting? Did he have

452
00:29:14,040 --> 00:29:16,960
Speaker 9: strong reason to believe that the statements were false and

453
00:29:17,320 --> 00:29:20,720
Speaker 9: nevertheless allow them to be issued. And so it's the

454
00:29:20,840 --> 00:29:24,000
Speaker 9: Times argument that you know, we were careless right, We

455
00:29:24,040 --> 00:29:28,360
Speaker 9: made a mistake. We apologized our journalism was sloppy here,

456
00:29:28,840 --> 00:29:31,560
Speaker 9: but we attempted to correct that as quickly as possible.

457
00:29:31,760 --> 00:29:34,000
Speaker 9: And what we did didn't rise to the level of

458
00:29:34,040 --> 00:29:36,920
Speaker 9: reckless disregard to the truth. It was merely negligent and

459
00:29:36,960 --> 00:29:40,479
Speaker 9: that's not sufficient in a libel case involving a public figure.

460
00:29:40,760 --> 00:29:44,520
Speaker 4: So did Palin's testimony relate at all to that question

461
00:29:44,720 --> 00:29:46,680
Speaker 4: or was it just about damages?

462
00:29:47,360 --> 00:29:52,200
Speaker 9: So Palin's testimony was about the harm that she alleged

463
00:29:52,240 --> 00:29:55,760
Speaker 9: that she suffered. She said things like, you know, it

464
00:29:55,880 --> 00:29:58,200
Speaker 9: kicked the oomph out of you. I guess the language

465
00:29:58,200 --> 00:30:02,120
Speaker 9: he used right to describe how injurious these statements were

466
00:30:02,200 --> 00:30:06,240
Speaker 9: to her sense of self, her emotional state. But interestingly,

467
00:30:06,280 --> 00:30:08,920
Speaker 9: I don't think she was able to demonstrate that she'd

468
00:30:09,000 --> 00:30:12,680
Speaker 9: actually suffered reputational harm. I don't think she lost any

469
00:30:12,840 --> 00:30:16,880
Speaker 9: speaking engagements or book deals or anything tangible as a

470
00:30:16,920 --> 00:30:21,200
Speaker 9: result of this allegation. But yes, her testimony was mainly

471
00:30:21,240 --> 00:30:22,640
Speaker 9: on the harm that she had suffered.

472
00:30:23,240 --> 00:30:25,400
Speaker 4: So what do you think the message is when a

473
00:30:25,440 --> 00:30:30,200
Speaker 4: second jury, after deliberating only about three hours, came back

474
00:30:30,240 --> 00:30:33,200
Speaker 4: with the same verdict as the jury two years ago

475
00:30:33,640 --> 00:30:35,560
Speaker 4: that The Times didn't defame Palin?

476
00:30:36,200 --> 00:30:36,440
Speaker 1: Yeah?

477
00:30:36,480 --> 00:30:40,680
Speaker 9: Well, I think the conclusion is that actual malice is

478
00:30:40,680 --> 00:30:44,920
Speaker 9: a very high barred clear and that it does a

479
00:30:44,920 --> 00:30:48,720
Speaker 9: good job protecting the press in situations where there may

480
00:30:48,760 --> 00:30:53,080
Speaker 9: be an honest mistake, a mistake that a responsible news

481
00:30:53,080 --> 00:30:56,440
Speaker 9: publication goes out of his way to attempt to correct

482
00:30:56,720 --> 00:31:02,000
Speaker 9: and actual malice says that that's not punishable. Now there's

483
00:31:02,040 --> 00:31:05,400
Speaker 9: the question of whether or not Palin will attempt to

484
00:31:05,440 --> 00:31:09,440
Speaker 9: appeal this, and whether this win for The Times will

485
00:31:09,640 --> 00:31:13,400
Speaker 9: sort of fuel the momentum that's out there to get

486
00:31:13,400 --> 00:31:16,680
Speaker 9: the Supreme Court to reconsider the actual malice standard that's

487
00:31:16,760 --> 00:31:18,080
Speaker 9: kind of lurking in the background of this.

488
00:31:18,560 --> 00:31:21,360
Speaker 4: I think Palin's lawyers said that they wanted to use

489
00:31:21,400 --> 00:31:25,959
Speaker 4: this to attack the precedent the landmark New York Times

490
00:31:26,120 --> 00:31:29,800
Speaker 4: the Sullivan case explain how that case has come under

491
00:31:29,920 --> 00:31:31,160
Speaker 4: fire recently.

492
00:31:32,160 --> 00:31:36,120
Speaker 9: So the attack on New York Times versus Sullivan really

493
00:31:36,160 --> 00:31:39,640
Speaker 9: started in earnest I think back in twenty sixteen when

494
00:31:39,720 --> 00:31:43,560
Speaker 9: Trump announced that he wanted to open up libel laws

495
00:31:43,600 --> 00:31:46,160
Speaker 9: to make it easier for him than his allies to

496
00:31:46,160 --> 00:31:49,040
Speaker 9: sue the press for libel and I think what he

497
00:31:49,200 --> 00:31:53,480
Speaker 9: was referring to was getting the Supreme Court to overrul

498
00:31:53,640 --> 00:31:57,520
Speaker 9: New York Times versus Sullivan. So Ever since then, there

499
00:31:57,560 --> 00:32:01,400
Speaker 9: have been a number of conservative lawyers and activist groups

500
00:32:01,440 --> 00:32:05,440
Speaker 9: and pundits who have been making this case, arguing that

501
00:32:05,520 --> 00:32:10,920
Speaker 9: Sullivan is outdated, that it doesn't protect reputation enough that

502
00:32:11,160 --> 00:32:14,760
Speaker 9: it protects, you know, the lying press, and that it

503
00:32:14,840 --> 00:32:18,960
Speaker 9: needs to go. And these pundits and lawyers have been

504
00:32:19,080 --> 00:32:23,440
Speaker 9: focusing in particular on some cases decided by the Supreme

505
00:32:23,480 --> 00:32:27,360
Speaker 9: Court after Sullivan in nineteen sixty seven, when it extended

506
00:32:27,360 --> 00:32:31,280
Speaker 9: the Sullivan Actual Mouth standards of public figures. So Sullivan

507
00:32:31,320 --> 00:32:35,520
Speaker 9: dealt only with public officials, and so the extension, sometimes

508
00:32:35,520 --> 00:32:38,880
Speaker 9: called the Progeny of Sullivan, really create a broad protection

509
00:32:39,000 --> 00:32:42,160
Speaker 9: for the press against libel suits. But that has really

510
00:32:42,200 --> 00:32:45,960
Speaker 9: been a target of these opponents. They want the court

511
00:32:46,040 --> 00:32:48,440
Speaker 9: to get rid of that public figure standard or to

512
00:32:48,720 --> 00:32:51,640
Speaker 9: limit the definition of who is a public figure. And

513
00:32:52,080 --> 00:32:54,800
Speaker 9: you know, we may see that having increasing traction in

514
00:32:54,800 --> 00:32:55,560
Speaker 9: the coming years.

515
00:32:55,840 --> 00:32:59,120
Speaker 4: You've written a best selling book on the subject called

516
00:32:59,240 --> 00:33:02,520
Speaker 4: Actual Malle. So do you think that the standard is

517
00:33:02,600 --> 00:33:04,800
Speaker 4: too high for plaintiffs to clear? Now?

518
00:33:04,960 --> 00:33:08,560
Speaker 9: I think that the New York Times versus Sullivant standard

519
00:33:08,960 --> 00:33:12,760
Speaker 9: and the extension the public figures really strikes an appropriate

520
00:33:12,800 --> 00:33:17,640
Speaker 9: balance between the protection of reputation and protections for freedom

521
00:33:17,680 --> 00:33:21,560
Speaker 9: of speech and press. It is possible to recover for

522
00:33:21,720 --> 00:33:26,240
Speaker 9: injury reputation under our constitutional regime. Right if you can

523
00:33:26,400 --> 00:33:29,040
Speaker 9: show this reckless disregard of the truth, you will be

524
00:33:29,120 --> 00:33:31,960
Speaker 9: able to prevail. So it's not that libel law is dead,

525
00:33:32,160 --> 00:33:36,600
Speaker 9: as some have said. It's just very difficult to meet

526
00:33:36,680 --> 00:33:38,640
Speaker 9: the standard. And that's because we need to have a

527
00:33:38,720 --> 00:33:43,280
Speaker 9: press that is free and robust. The Court said in Sullivan,

528
00:33:43,840 --> 00:33:46,880
Speaker 9: press that can make an honest mistake in the course

529
00:33:46,920 --> 00:33:50,960
Speaker 9: of gathering the news when procedures may be time pressured.

530
00:33:51,200 --> 00:33:53,680
Speaker 9: So I think, you know, we have a system that's

531
00:33:53,840 --> 00:33:56,360
Speaker 9: worked very well for the past sixty years that has

532
00:33:56,400 --> 00:34:00,320
Speaker 9: really allowed a lot of important journalism to flourish. Still

533
00:34:00,320 --> 00:34:03,160
Speaker 9: allows the same people to recover when they can meet

534
00:34:03,160 --> 00:34:03,680
Speaker 9: that standard.

535
00:34:04,240 --> 00:34:06,720
Speaker 4: I mean, I'm not sure how many people really followed

536
00:34:06,720 --> 00:34:09,640
Speaker 4: this case. It did get a lot of publicity. Do

537
00:34:09,680 --> 00:34:13,279
Speaker 4: you think the loss here encourages the movement to get

538
00:34:13,440 --> 00:34:17,200
Speaker 4: rid of The New York Times v. Sullivan's standard. What's

539
00:34:17,239 --> 00:34:20,080
Speaker 4: the impact of a loss in a case like this.

540
00:34:20,680 --> 00:34:23,680
Speaker 9: Yeah, so I think they could point to this and say,

541
00:34:23,800 --> 00:34:26,120
Speaker 9: you know, there was clearly wrongdoing on the part of

542
00:34:26,120 --> 00:34:31,200
Speaker 9: the Times. The Times admitted its mistake. Nevertheless, under our

543
00:34:31,400 --> 00:34:35,920
Speaker 9: current constitutional regime, the plaintiffs Palin could not recover, and

544
00:34:35,960 --> 00:34:38,480
Speaker 9: they would say that's unfair and that we need to

545
00:34:38,560 --> 00:34:41,440
Speaker 9: kind of lower the bar to make it easier for

546
00:34:41,680 --> 00:34:45,799
Speaker 9: public figures to recover when news media have been careless.

547
00:34:45,960 --> 00:34:49,040
Speaker 9: So I can see this sort of playing into that

548
00:34:49,120 --> 00:34:53,440
Speaker 9: campaign that argues actual malice is just too stringent a standard.

549
00:34:53,480 --> 00:34:56,359
Speaker 9: It doesn't permit people who have been injured to get

550
00:34:56,360 --> 00:34:58,560
Speaker 9: the compensation that they feel they deserve.

551
00:34:59,320 --> 00:35:04,600
Speaker 4: Americans trust in the media continues to be low. Last year,

552
00:35:04,640 --> 00:35:07,080
Speaker 4: for the third year in a row, a Gallup polls

553
00:35:07,160 --> 00:35:10,400
Speaker 4: show that more Americans had no trust in the media

554
00:35:10,760 --> 00:35:14,440
Speaker 4: thirty six percent then had trust in the media thirty

555
00:35:14,480 --> 00:35:18,200
Speaker 4: three percent. So in this climate, is it a surprise

556
00:35:18,280 --> 00:35:20,960
Speaker 4: that the jury came back for the New York Times

557
00:35:21,360 --> 00:35:23,920
Speaker 4: or is it not a surprise because we're talking about

558
00:35:23,960 --> 00:35:27,000
Speaker 4: a jury in New York City, which has been called

559
00:35:27,040 --> 00:35:28,720
Speaker 4: the media capital of the world.

560
00:35:29,080 --> 00:35:32,920
Speaker 9: Yeah, I think it was a little bit of a surprise.

561
00:35:33,360 --> 00:35:37,800
Speaker 9: I mean, again, we have this trial taking place against

562
00:35:37,800 --> 00:35:42,399
Speaker 9: a cultural and political backdrop that has not been very

563
00:35:42,440 --> 00:35:46,319
Speaker 9: favorable to the press. The press is increasingly accused of

564
00:35:46,400 --> 00:35:51,080
Speaker 9: noddying objective trustworthiness is question and so I would not

565
00:35:51,239 --> 00:35:55,520
Speaker 9: have been surprised to have seen a jury go for Palin.

566
00:35:56,200 --> 00:35:59,520
Speaker 9: I think today in libel cases, even when there's week

567
00:35:59,719 --> 00:36:03,879
Speaker 9: of a of actual malice, the journey might be motivated

568
00:36:03,960 --> 00:36:06,920
Speaker 9: to be reckless disregard to the truth, just because of

569
00:36:06,960 --> 00:36:08,720
Speaker 9: this distrust of the press.

570
00:36:08,760 --> 00:36:09,640
Speaker 6: It's so pervasive.

571
00:36:09,880 --> 00:36:11,319
Speaker 4: Any final thoughts, I.

572
00:36:11,320 --> 00:36:14,480
Speaker 9: Mean, I think that this could add to the momentum

573
00:36:14,680 --> 00:36:17,520
Speaker 9: to over ruler New York Times versus Sullivan and the

574
00:36:17,560 --> 00:36:20,160
Speaker 9: progeny cases. And so I think those of us who

575
00:36:20,200 --> 00:36:23,200
Speaker 9: are concerned with press freedoms are going to be watching

576
00:36:23,200 --> 00:36:24,440
Speaker 9: as closely to see what happened.

577
00:36:24,760 --> 00:36:27,520
Speaker 4: I enjoyed our discussion, Samantha, thanks so much for coming

578
00:36:27,560 --> 00:36:31,160
Speaker 4: on the show. That's Professor Samantha Barbas of the University

579
00:36:31,239 --> 00:36:35,560
Speaker 4: of Iowa College of Law. Her book is entitled Actual Malice,

580
00:36:36,000 --> 00:36:39,040
Speaker 4: Civil Rights and Freedom of the Press in New York

581
00:36:39,080 --> 00:36:42,000
Speaker 4: Times Vast Sullivan. And that's it for this edition of

582
00:36:42,000 --> 00:36:44,640
Speaker 4: The Bloomberg Law Show. Remember you can always get the

583
00:36:44,719 --> 00:36:47,920
Speaker 4: latest legal news on our Bloomberg Law Podcast. You can

584
00:36:47,960 --> 00:36:52,200
Speaker 4: find them on Apple Podcasts, Spotify, and at www dot

585
00:36:52,200 --> 00:36:56,400
Speaker 4: Bloomberg dot com, slash podcast, Slash Law, And remember to

586
00:36:56,440 --> 00:36:59,800
Speaker 4: tune into The Bloomberg Law Show every weeknight at ten pm,

587
00:36:59,840 --> 00:37:03,280
Speaker 4: one Wall Street Time. I'm June Grosso and you're listening

588
00:37:03,400 --> 00:37:08,759
Speaker 4: to Bloomberg m