1 00:00:03,200 --> 00:00:08,000 Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio. 2 00:00:09,920 --> 00:00:13,399 Speaker 2: Sam Bankmin Freed is appealing his conviction and asking for 3 00:00:13,440 --> 00:00:17,800 Speaker 2: a new trial. The FDx founder argues that everyone rushed 4 00:00:17,840 --> 00:00:21,600 Speaker 2: to judgment after the company's collapse and that fair trial 5 00:00:21,680 --> 00:00:26,439 Speaker 2: principles were swept away in a quote sentenced first verdict 6 00:00:26,560 --> 00:00:31,240 Speaker 2: afterwards tsunami Bankman Freed was convicted in November of orchestrating 7 00:00:31,280 --> 00:00:35,239 Speaker 2: a year's long, multi billion dollar fraud at FTX, the 8 00:00:35,280 --> 00:00:39,240 Speaker 2: crypto empire that imploded in late twenty twenty two. He's 9 00:00:39,280 --> 00:00:43,040 Speaker 2: serving a twenty five year prison sentence imposed by federal 10 00:00:43,120 --> 00:00:46,839 Speaker 2: Judge Lewis Kaplan, and in the brief, blame is placed 11 00:00:46,880 --> 00:00:50,640 Speaker 2: on the judge. Bankman Freed's attorneys claimed that many of 12 00:00:50,680 --> 00:00:56,040 Speaker 2: the judge's rulings were not just erroneous, but unbalanced, repeatedly 13 00:00:56,080 --> 00:00:58,639 Speaker 2: putting a thumb on the scale to help the government 14 00:00:58,760 --> 00:01:02,480 Speaker 2: and thwart the defense. His lawyers asked the Second Circuit 15 00:01:02,560 --> 00:01:05,399 Speaker 2: to reverse his conviction and assign the case to a 16 00:01:05,440 --> 00:01:08,600 Speaker 2: new judge for a retrial. Joining me is Bloomberg Legal 17 00:01:08,640 --> 00:01:11,920 Speaker 2: reporter Christ Mesh, who covered the trial and has read 18 00:01:11,959 --> 00:01:14,679 Speaker 2: the legal brief a lot of it is a direct 19 00:01:14,720 --> 00:01:19,440 Speaker 2: attack on the trial judge Lewis Kaplan, and not just 20 00:01:19,560 --> 00:01:23,959 Speaker 2: incorrect rulings, but that he had a bias against Sam 21 00:01:24,000 --> 00:01:26,280 Speaker 2: bankman Fried and his trial team. 22 00:01:26,600 --> 00:01:29,520 Speaker 3: Yeah, it's a very interesting appeal. You know, most criminal 23 00:01:29,520 --> 00:01:33,640 Speaker 3: defendants who are convicted almost always launch an appeal, especially 24 00:01:33,720 --> 00:01:38,000 Speaker 3: white collar defendants, and they often attack legal rulings that 25 00:01:38,040 --> 00:01:40,399 Speaker 3: are made during the trial, whether it be during jury's 26 00:01:40,400 --> 00:01:44,920 Speaker 3: selection or you know, what witnesses were allowed to testify about, 27 00:01:45,080 --> 00:01:48,000 Speaker 3: and various things like that. But this appeal seems to 28 00:01:48,040 --> 00:01:51,639 Speaker 3: just kind of go beyond the normal challenges to legal 29 00:01:51,640 --> 00:01:55,320 Speaker 3: procedure and, like you said, directly attacks the trial judge 30 00:01:55,360 --> 00:02:00,000 Speaker 3: for a wide variety of what Sam bankwin Fried's lawyer 31 00:02:00,160 --> 00:02:03,800 Speaker 3: say are reversible errors, that he was biased against him 32 00:02:03,800 --> 00:02:06,600 Speaker 3: from the beginning. The one thing they really attack is 33 00:02:06,960 --> 00:02:11,160 Speaker 3: his decision to you know, not allow bankin Free to 34 00:02:11,240 --> 00:02:14,560 Speaker 3: use the defense that he was, you know, relying on 35 00:02:14,600 --> 00:02:17,800 Speaker 3: good faith on lawyer's advice, and that attacks what was 36 00:02:17,880 --> 00:02:20,720 Speaker 3: widely seen is kind of an unusual move to question 37 00:02:21,200 --> 00:02:23,760 Speaker 3: Sam bankmin Free outside of the presence of the jury 38 00:02:24,080 --> 00:02:28,280 Speaker 3: about his interactions with lawyers. It was very unusual move, 39 00:02:28,560 --> 00:02:32,160 Speaker 3: and don't see that a lot in trials, so it's 40 00:02:32,440 --> 00:02:35,400 Speaker 3: very reasonable to see his lawyers go after that. But 41 00:02:35,480 --> 00:02:38,480 Speaker 3: they've also kind of just talked about the fact that 42 00:02:38,520 --> 00:02:43,120 Speaker 3: the judge routinely had issues with his lawyers during the case, 43 00:02:43,360 --> 00:02:48,840 Speaker 3: you know, often interrupted cross examinations and frequently interrupted Sam's 44 00:02:48,840 --> 00:02:52,800 Speaker 3: own testimony to interject, and often just didn't think he 45 00:02:52,880 --> 00:02:55,880 Speaker 3: was telling the truth. So whether or not that is 46 00:02:55,919 --> 00:02:59,560 Speaker 3: a successful defense is yet to be seen. Trial does 47 00:02:59,720 --> 00:03:02,440 Speaker 3: or generally given a big leach when it comes to 48 00:03:03,120 --> 00:03:06,880 Speaker 3: their decisions and trials, but this is a pretty significant 49 00:03:07,000 --> 00:03:10,000 Speaker 3: argument on appeal, and it's going to force the government 50 00:03:10,040 --> 00:03:14,000 Speaker 3: to respond in length, and I anticipate that we're going 51 00:03:14,040 --> 00:03:16,280 Speaker 3: to hear a lot of questions from the appeals court 52 00:03:16,360 --> 00:03:18,280 Speaker 3: judges once this gets to an oral argument. 53 00:03:18,520 --> 00:03:24,040 Speaker 2: Well, as I recall, the judge was sarcastic at times 54 00:03:25,040 --> 00:03:27,560 Speaker 2: with the defense counsel and the defense. 55 00:03:28,240 --> 00:03:30,760 Speaker 3: For sure, I mean more than I've seen in many 56 00:03:30,880 --> 00:03:34,920 Speaker 3: criminal trials where judges are generally deferential and more serious 57 00:03:35,000 --> 00:03:37,840 Speaker 3: and more just kind of wedded to procedure, and Judge 58 00:03:37,880 --> 00:03:40,960 Speaker 3: Kaplan clearly was I don't want to say annoyed, because 59 00:03:41,000 --> 00:03:43,000 Speaker 3: you know, a judge's temperament on the bench and not 60 00:03:43,040 --> 00:03:47,440 Speaker 3: necessarily reflection of their personal animosity and more just you know, 61 00:03:47,480 --> 00:03:50,960 Speaker 3: an annoyance with failure to adhere to procedure and things 62 00:03:51,040 --> 00:03:54,160 Speaker 3: like that. But it was an unusual amount of in 63 00:03:54,320 --> 00:03:58,040 Speaker 3: trial commentary before the jury that I haven't really seen 64 00:03:58,040 --> 00:03:59,160 Speaker 3: in a lot of criminal trials. 65 00:03:59,680 --> 00:04:03,240 Speaker 2: Also, so you mentioned this, but they argued that so 66 00:04:03,680 --> 00:04:07,120 Speaker 2: before he allowed Sam bankmin Free to testify, he had 67 00:04:07,160 --> 00:04:09,960 Speaker 2: a little sort of wadeer of Sam Bankman Freed. He 68 00:04:10,000 --> 00:04:12,440 Speaker 2: put him on the stand and he asked him questions, 69 00:04:12,840 --> 00:04:16,920 Speaker 2: which was really unusual for a defendant who's going to testify. 70 00:04:17,120 --> 00:04:19,640 Speaker 2: And the Bank and Fried's attorneys say that was an 71 00:04:19,760 --> 00:04:24,680 Speaker 2: unprecedented proceeding that permitted a prosecutor to conduct cross examination 72 00:04:25,320 --> 00:04:29,040 Speaker 2: going way beyond the supposed purpose of this preview hearing. 73 00:04:29,480 --> 00:04:31,159 Speaker 2: I mean, it was a strange hearing. 74 00:04:31,400 --> 00:04:34,520 Speaker 3: There's no doubt about that. Basically, his lawyers say that 75 00:04:34,600 --> 00:04:38,760 Speaker 3: he was essentially deposed by the judge, especially when a 76 00:04:38,800 --> 00:04:41,479 Speaker 3: defendant testifies, as we all know, that is a rarity 77 00:04:41,839 --> 00:04:44,599 Speaker 3: in the United States criminal trials, just because of the 78 00:04:44,680 --> 00:04:47,320 Speaker 3: potential issues it raises in terms of what you can 79 00:04:47,360 --> 00:04:50,920 Speaker 3: be questioned about across examination, and it opens the door 80 00:04:50,960 --> 00:04:52,720 Speaker 3: to a whole lot of other acts that may not 81 00:04:52,760 --> 00:04:55,160 Speaker 3: have come into the case had you not got on 82 00:04:55,200 --> 00:04:59,520 Speaker 3: the stand. But the judge basically like not basically, you know, 83 00:05:00,560 --> 00:05:04,840 Speaker 3: Bankman free directly without the jury in there, and it 84 00:05:04,920 --> 00:05:07,839 Speaker 3: was just a very unusual proceeding. It was kind of 85 00:05:07,839 --> 00:05:09,599 Speaker 3: hard to believe it was happening at the time, but 86 00:05:09,839 --> 00:05:12,600 Speaker 3: you know, the judge wanted to hear from him, and 87 00:05:12,839 --> 00:05:16,760 Speaker 3: he was clearly skeptical of his testimony before he questioned him. 88 00:05:16,839 --> 00:05:19,440 Speaker 3: He was skeptical of his testimony when he questioned him, 89 00:05:19,440 --> 00:05:21,359 Speaker 3: and then he was skeptical of his testimony when he 90 00:05:21,400 --> 00:05:24,200 Speaker 3: got on the stand. So that does seem to be 91 00:05:24,279 --> 00:05:27,680 Speaker 3: the heart of their attack on this procedure. And if 92 00:05:27,680 --> 00:05:30,880 Speaker 3: there is anything that might give the appeals court judges pause, 93 00:05:30,920 --> 00:05:33,520 Speaker 3: it might be that. But like I said, trial judges 94 00:05:33,560 --> 00:05:36,520 Speaker 3: are often given a lot of deference in terms of 95 00:05:36,560 --> 00:05:39,280 Speaker 3: their decisions. Eddy appeal is a long shot from a 96 00:05:39,360 --> 00:05:40,000 Speaker 3: jury conviction. 97 00:05:40,240 --> 00:05:42,640 Speaker 2: They do have a lot of a lot of latitude, 98 00:05:42,680 --> 00:05:46,400 Speaker 2: but there is a point where it stops. They also 99 00:05:46,800 --> 00:05:50,520 Speaker 2: said that the jury only saw half the picture because 100 00:05:50,600 --> 00:05:54,320 Speaker 2: the judge didn't allow some critical evidence in to back 101 00:05:54,400 --> 00:05:58,799 Speaker 2: up Sam Bankman freed contended that FTX had enough funds 102 00:05:58,800 --> 00:06:02,719 Speaker 2: to cover customer with so the government's narrative that the 103 00:06:02,800 --> 00:06:08,120 Speaker 2: money was lost permanently was incorrect. And in fact fgx's 104 00:06:08,120 --> 00:06:10,280 Speaker 2: customers are going to receive one hundred percent of their 105 00:06:10,320 --> 00:06:11,920 Speaker 2: money back, right right. 106 00:06:12,240 --> 00:06:15,360 Speaker 3: That is another key part of their appeal. And in fact, 107 00:06:15,440 --> 00:06:18,479 Speaker 3: there's an interesting parallel to that in the case of 108 00:06:18,520 --> 00:06:22,240 Speaker 3: Martin Trelley, who was you know, convicted a trial but 109 00:06:22,360 --> 00:06:26,359 Speaker 3: also argued that his hedge fund investors hadn't lost any money. 110 00:06:26,360 --> 00:06:30,440 Speaker 3: There was plenty of testimonies during his trial that, you know, 111 00:06:30,480 --> 00:06:33,360 Speaker 3: that they had actually made money rather than lost money 112 00:06:33,400 --> 00:06:35,880 Speaker 3: from the alleged conduct. But in the end that didn't 113 00:06:35,880 --> 00:06:38,360 Speaker 3: succeed for Martin, and it might be hard to say 114 00:06:38,440 --> 00:06:39,479 Speaker 3: that would succeed here. 115 00:06:39,920 --> 00:06:43,640 Speaker 2: Something that I thought was unusual when it was happening. 116 00:06:43,839 --> 00:06:47,560 Speaker 2: I don't know that it's reversible error, but they say 117 00:06:47,600 --> 00:06:51,200 Speaker 2: that the judge quote improperly brought a jurors to reach 118 00:06:51,240 --> 00:06:54,800 Speaker 2: a quick verdict because he invited them on the first 119 00:06:54,880 --> 00:06:59,120 Speaker 2: day to stay late and he offered rides home and meals. 120 00:06:59,200 --> 00:07:01,840 Speaker 2: I thought that was unusual. I mean, the trial had 121 00:07:01,880 --> 00:07:04,560 Speaker 2: been so long, what was the rush. 122 00:07:04,720 --> 00:07:07,880 Speaker 3: Yeah, that took a lot of people by surprise in 123 00:07:07,920 --> 00:07:10,920 Speaker 3: the press room and among the observers that day when 124 00:07:10,920 --> 00:07:13,480 Speaker 3: that happened, and a lot of us wondered if that 125 00:07:13,480 --> 00:07:15,960 Speaker 3: wouldn't brought the jury to come to a verdict that day, 126 00:07:15,960 --> 00:07:17,520 Speaker 3: and in the end they did. I think it was 127 00:07:17,520 --> 00:07:21,400 Speaker 3: about twenty or thirty minutes before eight o'clock. So that 128 00:07:21,560 --> 00:07:25,160 Speaker 3: is something they definitely probably shouldn't have raised in the 129 00:07:25,200 --> 00:07:28,000 Speaker 3: appeal brief and did, and it will be questioned, I don't. 130 00:07:28,400 --> 00:07:32,280 Speaker 3: You know, Judges often have a lot of latitude in 131 00:07:32,360 --> 00:07:35,600 Speaker 3: terms of how they instruct the jury. It's not unusual 132 00:07:35,640 --> 00:07:38,200 Speaker 3: to see a judge ask the jury if they want 133 00:07:38,200 --> 00:07:42,560 Speaker 3: to stay later in a case, you know, what time 134 00:07:42,600 --> 00:07:45,520 Speaker 3: they want to go to. They're often very hesitant to 135 00:07:45,560 --> 00:07:48,520 Speaker 3: kind of give them any kind of formal parameters for time. 136 00:07:49,160 --> 00:07:52,720 Speaker 3: You know. Generally, you know, work on a regular schedule 137 00:07:52,880 --> 00:07:55,640 Speaker 3: nine to five whenever the court is open, They go 138 00:07:55,760 --> 00:07:58,360 Speaker 3: home at a regular time during the day during the trial. 139 00:07:58,840 --> 00:08:02,200 Speaker 3: But when it comes to liberations, things are a lot looser, 140 00:08:02,760 --> 00:08:06,360 Speaker 3: and the judge is usually pretty hesitant to kind of 141 00:08:06,880 --> 00:08:10,000 Speaker 3: restrain them in any way from their deliberations if they 142 00:08:10,000 --> 00:08:12,200 Speaker 3: want to stay late and continue talking if they think 143 00:08:12,200 --> 00:08:15,760 Speaker 3: they're making headway, he will allow them to. But hearing 144 00:08:15,840 --> 00:08:18,920 Speaker 3: him directly say you can stay late tonight, you know, 145 00:08:18,960 --> 00:08:21,240 Speaker 3: as late as you need and promising the meals and 146 00:08:21,320 --> 00:08:26,160 Speaker 3: rides was was definitely unusual. Whether or not it's reversible error, 147 00:08:26,200 --> 00:08:28,000 Speaker 3: Like you said, who knows. 148 00:08:28,360 --> 00:08:32,000 Speaker 2: We've said unusual quite a few times in this short conversation. 149 00:08:32,480 --> 00:08:34,679 Speaker 3: There's a lot of different things about this case. 150 00:08:34,880 --> 00:08:37,800 Speaker 2: We should mention that Judge Kaplan has been on the 151 00:08:37,800 --> 00:08:40,440 Speaker 2: bench for a long time and is a very highly 152 00:08:40,480 --> 00:08:41,720 Speaker 2: respected judge. 153 00:08:42,080 --> 00:08:44,520 Speaker 3: There's no question about that. And he's had a lot 154 00:08:44,559 --> 00:08:47,800 Speaker 3: of experience with cases. I think he thinks he knows 155 00:08:47,840 --> 00:08:51,120 Speaker 3: the law very well. And as I've said numerous times 156 00:08:51,160 --> 00:08:54,360 Speaker 3: during this interview, judges have a lot of especially trial 157 00:08:54,480 --> 00:08:58,400 Speaker 3: judges have a lot of leeway. Now it's not inconceivable 158 00:08:58,679 --> 00:09:03,440 Speaker 3: that some part of free trial procedure could be caught 159 00:09:03,440 --> 00:09:06,800 Speaker 3: into question by the appeals court then maybe results in 160 00:09:06,840 --> 00:09:10,160 Speaker 3: a new trial or something, but it's hard to hard 161 00:09:10,160 --> 00:09:11,040 Speaker 3: to say at this point. 162 00:09:11,440 --> 00:09:16,679 Speaker 2: And when the judge sentenced bankman freed to twenty five years, 163 00:09:17,160 --> 00:09:19,600 Speaker 2: I mean, did he say anything during the sentencing that 164 00:09:19,800 --> 00:09:21,280 Speaker 2: hinted at bias? 165 00:09:21,600 --> 00:09:23,679 Speaker 3: I don't know. About bias. He didn't believe them. He 166 00:09:24,160 --> 00:09:28,000 Speaker 3: didn't believe Bankment freed. He essentially said he's a risk 167 00:09:28,080 --> 00:09:31,800 Speaker 3: to commit more crimes. He called him out for his lives, 168 00:09:31,920 --> 00:09:34,200 Speaker 3: and he was whether or not he was biased or not, 169 00:09:34,240 --> 00:09:36,640 Speaker 3: he just thought that he was clear that he thought 170 00:09:36,679 --> 00:09:38,040 Speaker 3: that he was not telling the truth. 171 00:09:38,160 --> 00:09:42,040 Speaker 2: The state star witness Caroline Ellison, the former girlfriend of 172 00:09:42,080 --> 00:09:46,160 Speaker 2: Sam bankmin Fried, is going to be sentenced next week 173 00:09:46,400 --> 00:09:51,480 Speaker 2: by Judge Kaplan. Her lawyers filed papers asking that she'd 174 00:09:51,520 --> 00:09:55,360 Speaker 2: be given no jail time at all, citing her cooperation. 175 00:09:55,880 --> 00:09:59,800 Speaker 2: Do you know what the range is that she's facing, Well, the. 176 00:09:59,760 --> 00:10:05,679 Speaker 3: Guy lines range is life in prison, which is not 177 00:10:05,720 --> 00:10:07,520 Speaker 3: going to happen, and it is driven by the guide, 178 00:10:07,720 --> 00:10:10,600 Speaker 3: by the loss in the case, or the alleged losses 179 00:10:10,600 --> 00:10:12,920 Speaker 3: in the case, in the size of the fraud. 180 00:10:13,800 --> 00:10:17,200 Speaker 2: Her attorney's asked for no time, and the Probation Department 181 00:10:17,240 --> 00:10:19,800 Speaker 2: said no time, which I thought was unusual. 182 00:10:20,720 --> 00:10:24,040 Speaker 3: That's not really that unusual for cooperating witnesses. Yes, they're 183 00:10:24,080 --> 00:10:26,640 Speaker 3: asking for time to serve with three years of supervised relief, 184 00:10:27,040 --> 00:10:30,560 Speaker 3: and they're citing her extraordinary cooperation with that. I don't 185 00:10:30,640 --> 00:10:32,640 Speaker 3: know what the government will last. We'll see when they 186 00:10:32,840 --> 00:10:35,360 Speaker 3: file their sensing memo sometime this week. 187 00:10:35,520 --> 00:10:39,480 Speaker 2: The sentence will be solely up to Judge Kaplan. We'll 188 00:10:39,480 --> 00:10:44,120 Speaker 2: see how much he credits her cooperation. Thanks so much, Chris. 189 00:10:44,480 --> 00:10:48,280 Speaker 2: That's Bloomberg. Legal reporter Chris dol Mesh will be sentenced 190 00:10:48,280 --> 00:10:51,640 Speaker 2: in November and October, respectively. Coming up next on the 191 00:10:51,640 --> 00:10:55,040 Speaker 2: Bloomberg Laws Show. Since the reversal of Roe v. Wade 192 00:10:55,080 --> 00:10:58,720 Speaker 2: in twenty twenty two, every ballot measure on abortion rights 193 00:10:59,000 --> 00:11:03,720 Speaker 2: has been approved by voters. This November, an unprecedented number 194 00:11:03,720 --> 00:11:07,600 Speaker 2: of abortion initiatives are on state ballots, but some may 195 00:11:07,640 --> 00:11:12,880 Speaker 2: face uphill battles after rulings by state courts. You're listening 196 00:11:12,960 --> 00:11:17,040 Speaker 2: to Bloomberg. Since the overturning of Roe v. Wade in 197 00:11:17,120 --> 00:11:21,079 Speaker 2: twenty twenty two, legal battles over abortion laws have been 198 00:11:21,120 --> 00:11:24,760 Speaker 2: fought across the country in the more than twenty Republican 199 00:11:24,840 --> 00:11:28,960 Speaker 2: led states that have banned or restricted abortions. This November, 200 00:11:29,320 --> 00:11:32,560 Speaker 2: the battle will be decided by voters, as a record 201 00:11:32,640 --> 00:11:35,840 Speaker 2: number of abortion initiatives are on the ballots in at 202 00:11:35,920 --> 00:11:39,600 Speaker 2: least nine states. In the last two years, every ballot 203 00:11:39,640 --> 00:11:43,720 Speaker 2: measure preserving abortion rights has been approved by voters, but 204 00:11:43,880 --> 00:11:47,959 Speaker 2: can that record be preserved after legal Challenges by abortion 205 00:11:48,080 --> 00:11:51,880 Speaker 2: opponents have led to ballot measures with language describing a 206 00:11:51,920 --> 00:11:56,239 Speaker 2: fetus as an unborn human being, others with financial statements 207 00:11:56,280 --> 00:12:00,600 Speaker 2: about the negative fiscal impact of abortions, and even opposing 208 00:12:00,640 --> 00:12:04,360 Speaker 2: abortion measures on the same ballot in one state. Joining 209 00:12:04,360 --> 00:12:07,760 Speaker 2: me is Mary Ziegler, a professor at UC Davis Law School. 210 00:12:08,200 --> 00:12:13,040 Speaker 2: How would you characterize the challenges to abortion initiatives in general? 211 00:12:13,440 --> 00:12:15,520 Speaker 2: Are they technical or substantive? 212 00:12:16,120 --> 00:12:18,120 Speaker 4: Most of them are technicals. There are a lot of 213 00:12:18,160 --> 00:12:21,400 Speaker 4: them that involve whether a ballot measure satisfies what's called 214 00:12:21,720 --> 00:12:26,559 Speaker 4: the single subject requirement. There are challenges about the procedures 215 00:12:26,600 --> 00:12:31,240 Speaker 4: by which signatures were gathered or submitted. So most of 216 00:12:31,240 --> 00:12:35,160 Speaker 4: them either involve election law or the requirements for a 217 00:12:35,200 --> 00:12:38,200 Speaker 4: ballot to be put before voters. They don't actually deal 218 00:12:38,240 --> 00:12:38,840 Speaker 4: with substance. 219 00:12:39,280 --> 00:12:42,440 Speaker 2: Let's look at some of the states where they have 220 00:12:42,480 --> 00:12:47,280 Speaker 2: ballot measures. So in Arkansas, the Secretary of State rejected 221 00:12:47,280 --> 00:12:50,760 Speaker 2: it because they said they hadn't followed the rules to 222 00:12:50,840 --> 00:12:51,960 Speaker 2: paid canvassers. 223 00:12:52,440 --> 00:12:55,520 Speaker 4: Yeah, so essentially the people who were submitting the ballot 224 00:12:55,559 --> 00:13:00,600 Speaker 4: measure in Arkansas had been submitting required paper work for 225 00:13:00,720 --> 00:13:03,840 Speaker 4: paid canvassers on a rolling basis, and then when they 226 00:13:03,880 --> 00:13:07,120 Speaker 4: reached the requisite number of signatures, had finalized the paperwork. 227 00:13:07,400 --> 00:13:11,240 Speaker 4: The state complained that they hadn't essentially filed everything at once, 228 00:13:11,920 --> 00:13:14,080 Speaker 4: and as a result that it was hard for the 229 00:13:14,120 --> 00:13:19,480 Speaker 4: secretary to evaluate, especially paperwork about whether paid canvassors had 230 00:13:19,520 --> 00:13:23,400 Speaker 4: received training about signature gathering. So it was about that 231 00:13:23,520 --> 00:13:25,439 Speaker 4: paperwork and the timing of its submission. 232 00:13:25,840 --> 00:13:27,880 Speaker 2: Is it going to be on the ballot or no. 233 00:13:28,679 --> 00:13:32,800 Speaker 4: So the Arkansas Supreme Court affirmed that decision and that 234 00:13:32,880 --> 00:13:35,320 Speaker 4: will not be going before Arkansas voters in November. 235 00:13:35,600 --> 00:13:37,360 Speaker 2: So it was just because the Secretary of State was 236 00:13:37,360 --> 00:13:39,880 Speaker 2: finding it hard to count the signatures. 237 00:13:40,160 --> 00:13:42,640 Speaker 4: Yeah, I mean, it's it's pretty technical, right, So, I mean, 238 00:13:42,720 --> 00:13:46,320 Speaker 4: the dissenting judge and the Supreme Court's opinion said, essentially, 239 00:13:46,640 --> 00:13:50,320 Speaker 4: you know, all of the requisite paperwork was there, and 240 00:13:50,440 --> 00:13:54,840 Speaker 4: the complaint was about when and how it arrived. But substantively, 241 00:13:54,960 --> 00:13:57,400 Speaker 4: there were all the tools needed for the Secretary caarry 242 00:13:57,520 --> 00:14:00,640 Speaker 4: to evaluate the signatures. And the majority of actually said, 243 00:14:01,120 --> 00:14:03,360 Speaker 4: you know, we're going to enforce the letter of the law, 244 00:14:03,840 --> 00:14:07,600 Speaker 4: you know, a kind of formalism regardless of whether there 245 00:14:07,600 --> 00:14:10,120 Speaker 4: would have been a way to evaluate the signatures in 246 00:14:10,160 --> 00:14:11,600 Speaker 4: the training either way. 247 00:14:12,160 --> 00:14:16,160 Speaker 2: So still with the A's Arizona. So first, on the 248 00:14:16,200 --> 00:14:20,320 Speaker 2: proposed constitutional amendment, there's a description of a fetus as 249 00:14:20,360 --> 00:14:23,400 Speaker 2: an unborn human being that was approved by the state 250 00:14:23,440 --> 00:14:24,120 Speaker 2: Supreme Court. 251 00:14:24,240 --> 00:14:26,840 Speaker 4: Correct, Yeah, so the state Supreme Court approved that as 252 00:14:26,880 --> 00:14:29,200 Speaker 4: a description that could go before voters. Again, it's a 253 00:14:29,200 --> 00:14:32,800 Speaker 4: slightly different question because the Supreme Court didn't actually prevent 254 00:14:32,880 --> 00:14:36,040 Speaker 4: the measure from going before voters, but suggested that that 255 00:14:36,160 --> 00:14:40,760 Speaker 4: language wasn't misleading and that voters could, you know, essentially 256 00:14:40,840 --> 00:14:42,840 Speaker 4: wouldn't be adversely affected by it. 257 00:14:43,280 --> 00:14:45,320 Speaker 2: So I take it a lot of these challenges are 258 00:14:45,520 --> 00:14:49,560 Speaker 2: to the wording of the ballot measure, which can confuse. 259 00:14:49,240 --> 00:14:52,440 Speaker 4: Voters, right, I mean, I think that the objection to 260 00:14:52,520 --> 00:14:55,400 Speaker 4: that language was that it was very artisan, you know, 261 00:14:55,480 --> 00:15:01,160 Speaker 4: that it would essentially convince voters that measure should be rejected, 262 00:15:01,560 --> 00:15:03,680 Speaker 4: and that it took a position that was more aligned 263 00:15:03,720 --> 00:15:06,800 Speaker 4: with the pro life or anti abortion movement than a 264 00:15:06,840 --> 00:15:10,160 Speaker 4: neutral position. And so that was the objection that the 265 00:15:10,200 --> 00:15:11,640 Speaker 4: state Supreme Court rejected. 266 00:15:12,640 --> 00:15:16,240 Speaker 2: One of the proponents of abortion rights said that it's 267 00:15:16,240 --> 00:15:19,200 Speaker 2: going to be the longest ballot in state history. It's 268 00:15:19,200 --> 00:15:23,360 Speaker 2: going to have two pages and thirteen ballot measures taking 269 00:15:23,440 --> 00:15:27,000 Speaker 2: up the back of the second page. Was that inadvertent 270 00:15:27,160 --> 00:15:29,600 Speaker 2: or was that done to, you know, make it harder 271 00:15:29,640 --> 00:15:31,320 Speaker 2: to find the abortion measure? 272 00:15:31,720 --> 00:15:31,920 Speaker 3: Yeah? 273 00:15:32,080 --> 00:15:35,680 Speaker 4: I think that it was done to potentially diffuse these 274 00:15:35,760 --> 00:15:39,440 Speaker 4: kinds of legal challenges. I think supporters of abortion rights 275 00:15:39,480 --> 00:15:43,200 Speaker 4: in Arizona are aware of the fact that the Arizona 276 00:15:43,240 --> 00:15:47,000 Speaker 4: Supreme Court had allowed, you know, a pre Civil War 277 00:15:47,040 --> 00:15:49,600 Speaker 4: abortion band to go into effect. There's an assumption that 278 00:15:49,640 --> 00:15:54,600 Speaker 4: the court was and is quite conservative on questions of abortion. 279 00:15:54,760 --> 00:15:56,680 Speaker 4: So I think this was an effort to be thorough 280 00:15:56,760 --> 00:15:58,960 Speaker 4: and kind of block those kinds of challenges at the. 281 00:15:58,920 --> 00:16:02,800 Speaker 2: Past Florida, which it's gotten a lot of news because 282 00:16:02,840 --> 00:16:06,080 Speaker 2: the governor seems to have pulled out all the stops. 283 00:16:06,400 --> 00:16:10,840 Speaker 2: There's a Florida Cares website and it has the state 284 00:16:11,000 --> 00:16:13,600 Speaker 2: seal on it. I mean, has anyone challenged that using 285 00:16:13,640 --> 00:16:17,040 Speaker 2: the state seal and apparently there's misinformation on there. 286 00:16:17,240 --> 00:16:19,720 Speaker 4: I don't know if anyone is challenged it yet, but 287 00:16:19,840 --> 00:16:22,240 Speaker 4: I think this is sort of part of a broader 288 00:16:22,640 --> 00:16:24,600 Speaker 4: use of state power in Florida to try to block 289 00:16:24,640 --> 00:16:27,240 Speaker 4: the ballot or at least defeat the ballot initiative after 290 00:16:27,680 --> 00:16:30,280 Speaker 4: the state's effort to keep the ballot initiative from going 291 00:16:30,320 --> 00:16:34,320 Speaker 4: before voters failed. We've seen some analogical things happen in 292 00:16:34,360 --> 00:16:38,320 Speaker 4: Ohio before that state voted on its ultimately successful ballot measure. 293 00:16:38,560 --> 00:16:40,880 Speaker 4: We may see legal challenges to it, but I think 294 00:16:41,200 --> 00:16:43,480 Speaker 4: the Florida Supreme Court, like the Arizona Supreme Court, is 295 00:16:43,560 --> 00:16:45,800 Speaker 4: quite conservative, so those challenges may not work. 296 00:16:46,320 --> 00:16:50,000 Speaker 2: Governor Ron Dessand has had a squad of election police 297 00:16:50,440 --> 00:16:53,920 Speaker 2: going to the homes of those whose signatures are on 298 00:16:53,960 --> 00:16:58,200 Speaker 2: the petition for the abortion measure, questioning them. That has 299 00:16:58,240 --> 00:17:01,920 Speaker 2: to be at the very least a streful experience. Has 300 00:17:01,960 --> 00:17:03,800 Speaker 2: that been done before in other states. 301 00:17:04,119 --> 00:17:07,480 Speaker 4: I mean, it's certainly unusual. We haven't seen this kind 302 00:17:07,480 --> 00:17:10,320 Speaker 4: of level of I guess you could say intimidation before. 303 00:17:10,720 --> 00:17:15,639 Speaker 4: Governor Destantus' office argues that there are valid concerns about 304 00:17:16,440 --> 00:17:20,200 Speaker 4: essentially about fraud in the gathering of ballot signatures that 305 00:17:20,240 --> 00:17:23,840 Speaker 4: they're investigating. But of course, sending law enforcement of any 306 00:17:23,960 --> 00:17:27,120 Speaker 4: kind to somebody's door as part of a fraud investigation 307 00:17:27,280 --> 00:17:30,120 Speaker 4: before voting is even begun is going to have obviously 308 00:17:30,160 --> 00:17:33,560 Speaker 4: intimidating effects that I don't think are accidental. So I 309 00:17:33,600 --> 00:17:36,439 Speaker 4: think this is yet another thing that we're seeing in 310 00:17:36,480 --> 00:17:39,280 Speaker 4: this election of ballot initiatives that we haven't seen much before. 311 00:17:39,520 --> 00:17:43,160 Speaker 2: Also, the Florida Supreme Court is allowing a financial impact 312 00:17:43,320 --> 00:17:47,600 Speaker 2: statement to be included alongside the measure on the ballot. 313 00:17:48,200 --> 00:17:52,880 Speaker 2: That statement says an increase in abortions may negatively affect 314 00:17:52,960 --> 00:17:57,119 Speaker 2: the growth of state and local revenues over time. Is 315 00:17:57,160 --> 00:18:00,480 Speaker 2: that the first time that's happened a financial statement like that? 316 00:18:01,359 --> 00:18:03,400 Speaker 4: To my knowledge, it's the first time that it's appeared 317 00:18:03,440 --> 00:18:07,600 Speaker 4: on the ballot. Again, in Ohio, we've seen state lawmakers 318 00:18:07,600 --> 00:18:10,639 Speaker 4: and state resources used to make arguments against a ballot 319 00:18:10,680 --> 00:18:13,040 Speaker 4: initiative before, so that's not new, But I think the 320 00:18:13,119 --> 00:18:16,359 Speaker 4: focus on cost is new. I don't think that's surprising, again, 321 00:18:16,440 --> 00:18:19,480 Speaker 4: because abortion opponents have lost a lot of mass ballot 322 00:18:19,480 --> 00:18:23,080 Speaker 4: initiative campaigns, and so they're trying new strategies to see 323 00:18:23,080 --> 00:18:24,240 Speaker 4: if they can change their luck. 324 00:18:25,320 --> 00:18:29,159 Speaker 2: In Florida, sixty percent of voters are needed to pass 325 00:18:29,200 --> 00:18:33,840 Speaker 2: the abortion ballot measure. With these measures, is it usually 326 00:18:34,359 --> 00:18:38,639 Speaker 2: just a majority or sometimes a super majority required? 327 00:18:39,400 --> 00:18:41,680 Speaker 4: All of the ballot measures we've seen so far. Again, 328 00:18:41,760 --> 00:18:44,720 Speaker 4: not all of which were designed to codify reproductive rights. 329 00:18:44,720 --> 00:18:48,080 Speaker 4: Some of them were narrower, like rejecting an anti abortion proposal. 330 00:18:48,359 --> 00:18:52,080 Speaker 4: All of them just had majority requirements to pass. So 331 00:18:52,160 --> 00:18:55,080 Speaker 4: this is the first time we've seen a super majority requirement, 332 00:18:55,160 --> 00:18:58,399 Speaker 4: So it'll be interesting to see if that makes a 333 00:18:58,440 --> 00:19:01,680 Speaker 4: difference for abortion of oponents. Clearly, in Ohio there was 334 00:19:01,720 --> 00:19:03,879 Speaker 4: some belief that it would. There was an effort to 335 00:19:03,920 --> 00:19:07,440 Speaker 4: get Ohioans to raise the threshold for successful ballot measures 336 00:19:07,480 --> 00:19:10,879 Speaker 4: in a separate ballot measure. It fails, but Florida already 337 00:19:10,920 --> 00:19:13,280 Speaker 4: has the sixty percent threshold, so it'll be interesting to 338 00:19:13,280 --> 00:19:15,840 Speaker 4: see if that's enough. The help of working opponents serve 339 00:19:15,880 --> 00:19:18,400 Speaker 4: the momentum for abortion rights is just too significant. 340 00:19:19,119 --> 00:19:22,520 Speaker 2: In Nebraska, for the first time in state history, they're 341 00:19:22,520 --> 00:19:26,960 Speaker 2: going to be conflicting petitions on the same ballot. On Friday, 342 00:19:27,520 --> 00:19:31,199 Speaker 2: the state's top court ruled unanimously against the argument that 343 00:19:31,240 --> 00:19:35,080 Speaker 2: the abortion rights amendment violated the state's single subject rule. 344 00:19:35,160 --> 00:19:36,920 Speaker 2: I think you referred to this before. 345 00:19:37,240 --> 00:19:39,360 Speaker 4: Single subject rules have been the subject of a whole 346 00:19:39,400 --> 00:19:42,200 Speaker 4: bunch of litigation in a lot of states. They're applicable 347 00:19:42,200 --> 00:19:44,920 Speaker 4: in a lot of state constitutional context, and essentially they 348 00:19:44,960 --> 00:19:47,760 Speaker 4: apply to say that a ballot measure can only discuss 349 00:19:47,760 --> 00:19:50,720 Speaker 4: a single subject. And the rationale for them is that 350 00:19:51,080 --> 00:19:53,520 Speaker 4: voters would get confused if you cram too much into 351 00:19:53,560 --> 00:19:56,040 Speaker 4: a single ballot measure, or particularly if you kind of 352 00:19:56,080 --> 00:20:00,760 Speaker 4: interpolate a really unpopular proposal into an otherwise popular ballot measure. 353 00:20:01,000 --> 00:20:05,360 Speaker 4: So the idea behind this suit in Nebraska was that 354 00:20:05,400 --> 00:20:08,080 Speaker 4: there was more than one subject being covered because the 355 00:20:08,119 --> 00:20:12,119 Speaker 4: ballot measure addressed abortion, abortion restrictions, and viability, which the 356 00:20:12,119 --> 00:20:16,120 Speaker 4: opponents said, we're discrete topics, and the Nebraska Supreme Court 357 00:20:16,160 --> 00:20:18,919 Speaker 4: rejected that idea and said, of course, if there's a 358 00:20:19,000 --> 00:20:21,679 Speaker 4: right to abortion, that's going to have obvious impact on 359 00:20:21,800 --> 00:20:24,920 Speaker 4: whether restrictions can be imposed on that right. That's one 360 00:20:24,960 --> 00:20:28,000 Speaker 4: in the same subjects, and that since the decision of Roe, 361 00:20:28,200 --> 00:20:31,240 Speaker 4: viability as a concept has been entangled with whether there 362 00:20:31,240 --> 00:20:34,280 Speaker 4: are abortion rights. But this kind of single subject rule 363 00:20:34,400 --> 00:20:37,320 Speaker 4: argument had been raised not just in Nebraska but in 364 00:20:37,359 --> 00:20:39,760 Speaker 4: a variety of other states as well, so we're likely 365 00:20:39,800 --> 00:20:40,520 Speaker 4: to see more of it. 366 00:20:41,200 --> 00:20:44,879 Speaker 2: So how will it work with two competing ballot measures. 367 00:20:45,160 --> 00:20:47,880 Speaker 2: I assume the language in each is going to be different. 368 00:20:48,440 --> 00:20:53,360 Speaker 4: It sounds so confusing, exactly. So the two Nebraska ballot measures, 369 00:20:53,400 --> 00:20:55,560 Speaker 4: the one that we were just discussing, the kind of 370 00:20:55,600 --> 00:20:58,600 Speaker 4: pro abortion rights ballot measure, looks a lot like a 371 00:20:58,640 --> 00:21:00,760 Speaker 4: lot of other ballot measures in the sense that it's 372 00:21:00,800 --> 00:21:04,520 Speaker 4: trying to establish some kind of reproductive right. The anti 373 00:21:04,520 --> 00:21:07,359 Speaker 4: abortion ballot measure kind of plays around with what is 374 00:21:07,359 --> 00:21:09,879 Speaker 4: currently the status quo in Nebraska, which is that abortion 375 00:21:10,040 --> 00:21:14,280 Speaker 4: is more or less legal until twelve weeks. But the 376 00:21:14,320 --> 00:21:16,800 Speaker 4: ballot measure, instead of saying, okay, let's stick with the 377 00:21:16,840 --> 00:21:22,320 Speaker 4: status quo, constitutionalizes it, meaning there would be no constitutional 378 00:21:22,400 --> 00:21:27,480 Speaker 4: possibility of allowing abortion after the first trimester. So it's 379 00:21:27,520 --> 00:21:30,040 Speaker 4: confusing both in the sense that voters have two ballot 380 00:21:30,040 --> 00:21:32,480 Speaker 4: measures and also because the second ballot measure may feel 381 00:21:32,520 --> 00:21:35,680 Speaker 4: to voters just like the status quo, but in effect 382 00:21:35,720 --> 00:21:38,640 Speaker 4: would be putting kind of a constitutional limit on when 383 00:21:38,680 --> 00:21:39,920 Speaker 4: abortion would be permitted. 384 00:21:40,560 --> 00:21:44,439 Speaker 2: So whichever measure gets more votes wins or is there 385 00:21:44,520 --> 00:21:47,000 Speaker 2: a thirty five percent threshold. 386 00:21:46,920 --> 00:21:48,240 Speaker 4: Yeah, it's kind of confusing. 387 00:21:48,440 --> 00:21:48,480 Speaker 3: It. 388 00:21:49,040 --> 00:21:51,919 Speaker 4: My best understanding from talking to people in Nebraska is 389 00:21:51,920 --> 00:21:54,280 Speaker 4: that if both of them have I mean, obviously the 390 00:21:54,320 --> 00:21:57,679 Speaker 4: easiest scenario is neither of them have the votes to pass, 391 00:21:57,800 --> 00:21:59,639 Speaker 4: or only one of them has the vote to pass, 392 00:21:59,680 --> 00:22:01,440 Speaker 4: in which case of neither of them have the votes 393 00:22:01,440 --> 00:22:03,439 Speaker 4: to pass, then it's just going to be whatever the 394 00:22:03,480 --> 00:22:07,000 Speaker 4: status quo is in Nebraska. If both of them have 395 00:22:07,119 --> 00:22:09,640 Speaker 4: the votes to pass, then that's when it gets complicated. 396 00:22:09,840 --> 00:22:13,359 Speaker 4: My best understanding is that the one with more votes 397 00:22:13,440 --> 00:22:16,240 Speaker 4: would be the one that would be enacted into law. 398 00:22:16,640 --> 00:22:18,679 Speaker 4: But you can bet that if both of them have 399 00:22:18,760 --> 00:22:21,080 Speaker 4: the votes to pass, that would get litigated. 400 00:22:21,240 --> 00:22:22,360 Speaker 3: I don't think that we would. 401 00:22:22,240 --> 00:22:25,639 Speaker 4: Just see that settled straightforwardly. I'd be a little surprised 402 00:22:25,640 --> 00:22:27,320 Speaker 4: if both of them did have the votes to pass. 403 00:22:27,359 --> 00:22:30,199 Speaker 4: Of course, because voters are seeing lots of ads that 404 00:22:30,320 --> 00:22:33,000 Speaker 4: juxtapose them and say that they're diametrically opposed. 405 00:22:33,400 --> 00:22:36,840 Speaker 2: It seems like with all this the confusion, intimidation, etc. 406 00:22:37,200 --> 00:22:41,000 Speaker 2: That it becomes even more important that voters be educated 407 00:22:41,480 --> 00:22:44,520 Speaker 2: about the ballot measures before going to vote. 408 00:22:44,640 --> 00:22:46,840 Speaker 4: I think that's right. There's also a question of just 409 00:22:46,880 --> 00:22:51,639 Speaker 4: how much misinformation is really penetrating or not penetrating. So 410 00:22:52,400 --> 00:22:56,639 Speaker 4: in another example, another single subject challenge and other challenge 411 00:22:56,640 --> 00:22:59,560 Speaker 4: that failed recently was in Missouri, where a ballot measure 412 00:22:59,600 --> 00:23:02,880 Speaker 4: will go for voters, and there the strategy has been 413 00:23:03,359 --> 00:23:07,760 Speaker 4: for conservatives to argue that the ballot measure, which would 414 00:23:08,240 --> 00:23:12,280 Speaker 4: create a right to reproductive healthcare, will actually force Missouri 415 00:23:12,320 --> 00:23:16,560 Speaker 4: to legalize cloning and gender affirming care, which they're arguing 416 00:23:16,640 --> 00:23:20,280 Speaker 4: would fall under the umbrella of reproductive healthcare. The goal there, 417 00:23:20,320 --> 00:23:24,280 Speaker 4: obviously is to convince Missouri voters who don't support gender 418 00:23:24,280 --> 00:23:26,720 Speaker 4: affirming care or cloning that this is like a trojan 419 00:23:26,760 --> 00:23:30,800 Speaker 4: horse that will cover those things when ultimately the interpretation 420 00:23:30,920 --> 00:23:33,520 Speaker 4: of the ballot initiatives language will be done by the 421 00:23:33,640 --> 00:23:37,639 Speaker 4: Missouri Supreme Court, which is generally quite conservative. So I 422 00:23:37,640 --> 00:23:40,600 Speaker 4: think there's also been an effort to confuse voters about 423 00:23:40,640 --> 00:23:43,720 Speaker 4: exactly what they're voting for. I don't know to what 424 00:23:43,840 --> 00:23:48,080 Speaker 4: extent that's working. In to what extent voters understand these 425 00:23:48,119 --> 00:23:50,919 Speaker 4: ballot measures based on what's going on more broadly in 426 00:23:50,960 --> 00:23:54,240 Speaker 4: their state when it comes to struggles over abortion, but 427 00:23:54,520 --> 00:23:57,359 Speaker 4: I think that'll be another big question going into the election. 428 00:23:57,840 --> 00:24:01,000 Speaker 2: Yeah, I mean, so far, every with all these legal 429 00:24:01,119 --> 00:24:06,400 Speaker 2: challenges having led to language that's unfavorable in some states 430 00:24:06,800 --> 00:24:12,000 Speaker 2: confusion in others. Even opposing abortion measures on the same 431 00:24:12,119 --> 00:24:15,760 Speaker 2: ballot in Nebraska could we see some of these initiatives 432 00:24:15,840 --> 00:24:20,440 Speaker 2: defeated in November for the first time since Roe was overturned. 433 00:24:20,840 --> 00:24:24,040 Speaker 4: Yeah, it's definitely possible. I mean, it's worth emphasizing, right 434 00:24:24,080 --> 00:24:26,399 Speaker 4: that what the abortion rights movement is trying to do 435 00:24:26,520 --> 00:24:29,520 Speaker 4: in this election is objectively harder in a variety of ways. 436 00:24:29,600 --> 00:24:29,760 Speaker 3: Right. 437 00:24:29,800 --> 00:24:32,280 Speaker 4: So, there are several states in which ballot measures are 438 00:24:32,320 --> 00:24:34,720 Speaker 4: going forward that are just much more conservative than any 439 00:24:34,800 --> 00:24:37,280 Speaker 4: we've seen ballid initiatives in to date. So as much 440 00:24:37,280 --> 00:24:39,880 Speaker 4: as Ohio as a red state, Ohio is not as 441 00:24:39,920 --> 00:24:45,280 Speaker 4: conservative as South Dakota or Missouri, right, I mean, we're seeing, 442 00:24:45,280 --> 00:24:49,320 Speaker 4: for example, a competitive Senate election in Ohio. We're not 443 00:24:49,400 --> 00:24:51,760 Speaker 4: seeing anything like that in South Dakota. 444 00:24:51,920 --> 00:24:52,120 Speaker 3: Right. 445 00:24:52,240 --> 00:24:55,480 Speaker 4: So, one, you're just going to much more conservative states 446 00:24:55,520 --> 00:24:59,200 Speaker 4: with actual measures backing reproductive rights in other words, not 447 00:24:59,240 --> 00:25:02,360 Speaker 4: just saying something more incremental like we saw in Kentucky 448 00:25:02,440 --> 00:25:05,720 Speaker 4: or Montana in twenty twenty two. It's harder because in 449 00:25:05,760 --> 00:25:09,200 Speaker 4: some instances, like in Florida, they're super majority requirements. It's 450 00:25:09,240 --> 00:25:13,320 Speaker 4: harder in some instances because the state, as in Florida, 451 00:25:13,440 --> 00:25:16,360 Speaker 4: is using resources to try to defeat the ballot measures. 452 00:25:16,560 --> 00:25:20,760 Speaker 4: It's also harder, I think because you're seeing something in 453 00:25:20,800 --> 00:25:24,399 Speaker 4: a presidential election year where people me who are conservative 454 00:25:24,520 --> 00:25:26,720 Speaker 4: may change the way they're thinking of this issue in 455 00:25:26,760 --> 00:25:29,399 Speaker 4: part because they vote the same up and down the ballot. 456 00:25:29,720 --> 00:25:32,680 Speaker 4: And there's confusion as we see in Nebraska when you 457 00:25:32,720 --> 00:25:35,000 Speaker 4: have more than one ballot measure that voters can choose 458 00:25:35,040 --> 00:25:38,800 Speaker 4: between without necessarily understanding the stakes. So I think that 459 00:25:39,000 --> 00:25:42,880 Speaker 4: it's definitely possible. It's one of the toughest tests, for sure, 460 00:25:43,119 --> 00:25:45,600 Speaker 4: that we've seen with ballot initiatives since jobs. 461 00:25:46,160 --> 00:25:49,920 Speaker 2: We'll be following all these ballot measures come November. Thanks 462 00:25:49,920 --> 00:25:53,399 Speaker 2: so much, Mary. That's Professor Mary Ziegler of UC Davis 463 00:25:53,480 --> 00:25:58,080 Speaker 2: Law School coming up next. TikTok does not fare well 464 00:25:58,320 --> 00:26:01,440 Speaker 2: in the DC Appellate Court. I'm June Gross. When you're 465 00:26:01,480 --> 00:26:06,720 Speaker 2: listening to Bloomberg, time maybe ticking away for TikTok, and 466 00:26:06,800 --> 00:26:10,280 Speaker 2: it's more than one hundred and seventy million US users. 467 00:26:10,800 --> 00:26:14,840 Speaker 2: The Chinese owner of the wildly popular social media app 468 00:26:15,119 --> 00:26:19,000 Speaker 2: has until January nineteenth to sell the app or face 469 00:26:19,040 --> 00:26:22,000 Speaker 2: a ban in the US, and it appears the DC 470 00:26:22,160 --> 00:26:25,320 Speaker 2: Appellate Court is not going to be much help, judging 471 00:26:25,359 --> 00:26:28,679 Speaker 2: by the grilling TikTok got from a three judge panel 472 00:26:29,119 --> 00:26:32,720 Speaker 2: which was skeptical that the law banning the video sharing 473 00:26:32,760 --> 00:26:37,000 Speaker 2: app would violate the company's free speech rights. Joining me 474 00:26:37,080 --> 00:26:42,280 Speaker 2: is Matthew Shettenholm, Bloomberg Intelligence litigation and government analyst. Matt 475 00:26:42,400 --> 00:26:46,159 Speaker 2: explain the issue here why TikTok has been under scrutiny 476 00:26:46,200 --> 00:26:46,960 Speaker 2: for so long. 477 00:26:47,520 --> 00:26:51,960 Speaker 1: So TikTok fell under scrutiny for two main reasons. One 478 00:26:52,160 --> 00:26:59,600 Speaker 1: a concern about potential propaganda that with TikTok's parents being 479 00:26:59,760 --> 00:27:03,840 Speaker 1: low lo caated in China, that there was the potential 480 00:27:04,119 --> 00:27:08,600 Speaker 1: for China to influence the content that one hundred and 481 00:27:08,600 --> 00:27:13,240 Speaker 1: seventy million Americans are seeing. And a second concern is 482 00:27:13,400 --> 00:27:18,439 Speaker 1: with data privacy, that all this information about what one 483 00:27:18,520 --> 00:27:22,720 Speaker 1: hundred and seventy million Americans are clicking on or even 484 00:27:22,760 --> 00:27:28,439 Speaker 1: where they're located is potentially again running back to a 485 00:27:28,560 --> 00:27:33,160 Speaker 1: company with that's located in China, and that potentially raises 486 00:27:33,240 --> 00:27:38,760 Speaker 1: concerns with China's access to potentially very sensitive data. And 487 00:27:38,840 --> 00:27:43,879 Speaker 1: so those two things really drove legislators into passing what 488 00:27:44,040 --> 00:27:46,359 Speaker 1: became law in April. 489 00:27:46,600 --> 00:27:48,119 Speaker 2: And tell me about that law. 490 00:27:48,400 --> 00:27:51,639 Speaker 1: Basically, this law says it passed in late April, as 491 00:27:51,640 --> 00:27:53,480 Speaker 1: I said, and it says it from two hundred and 492 00:27:53,480 --> 00:27:57,560 Speaker 1: seventy days after that passage, which takes us to January 493 00:27:57,720 --> 00:28:02,879 Speaker 1: nineteenth of twenty twenty five. On that gate, no company 494 00:28:03,320 --> 00:28:08,159 Speaker 1: can carry TikTok in an app store or carry it 495 00:28:08,240 --> 00:28:11,920 Speaker 1: on a server in a way that allows the app 496 00:28:12,000 --> 00:28:16,840 Speaker 1: to be distributed or updated or maintained in the United States. 497 00:28:17,320 --> 00:28:19,960 Speaker 1: And if companies continue to carry it in their app 498 00:28:20,000 --> 00:28:23,200 Speaker 1: stores or to carry it on servers, they would face 499 00:28:23,359 --> 00:28:28,359 Speaker 1: severe potential liability and penalties and enforcement. And the only 500 00:28:28,520 --> 00:28:32,080 Speaker 1: path around that is that Congress allowed is for TikTok 501 00:28:32,200 --> 00:28:35,320 Speaker 1: to divest the company, for the company to be sold 502 00:28:35,760 --> 00:28:39,360 Speaker 1: to a company that doesn't have a parent located in China. 503 00:28:39,640 --> 00:28:43,280 Speaker 1: But TikTok has said, look, that is not feasible. We 504 00:28:43,320 --> 00:28:46,400 Speaker 1: are not able to do a divestiture in two hundred 505 00:28:46,400 --> 00:28:50,040 Speaker 1: and seventy days technically legally for a number of reasons. 506 00:28:50,080 --> 00:28:53,440 Speaker 1: So they've effectively told the court, look, that's not happening. 507 00:28:53,920 --> 00:28:56,320 Speaker 1: And instead of doing that, they've they've brought a First 508 00:28:56,320 --> 00:28:59,680 Speaker 1: Amendment challenge to try to challenge the court. And that's 509 00:28:59,760 --> 00:29:02,480 Speaker 1: what what we heard at the DC Circuit on Monday 510 00:29:02,480 --> 00:29:04,520 Speaker 1: morning was the argument in that case. 511 00:29:05,000 --> 00:29:07,600 Speaker 2: So The hearing was scheduled for fifty minutes and it 512 00:29:07,720 --> 00:29:10,760 Speaker 2: ran for about two hours. And what was the main. 513 00:29:10,640 --> 00:29:14,760 Speaker 1: Issue, certainly the First Amendment. So TikTok threw a number 514 00:29:14,760 --> 00:29:19,040 Speaker 1: of arguments against this law. Its lead argument was the 515 00:29:19,040 --> 00:29:21,920 Speaker 1: First Amendment, and that's all the court reached. It's all 516 00:29:21,920 --> 00:29:25,640 Speaker 1: the court talked about. We never reached the takings clause 517 00:29:25,720 --> 00:29:29,480 Speaker 1: claims or the Bill of Attainder issues. This is going 518 00:29:29,520 --> 00:29:32,760 Speaker 1: to be won or lost for TikTok on the First Amendment. 519 00:29:32,920 --> 00:29:36,160 Speaker 1: And TikTok really made the argument that this is an 520 00:29:36,280 --> 00:29:40,880 Speaker 1: unprecedented speech restriction in the United States, that this is 521 00:29:41,160 --> 00:29:44,080 Speaker 1: one of the leading social media apps. One hundred and 522 00:29:44,080 --> 00:29:48,960 Speaker 1: seventy million Americans use this for communicating for speech every day, 523 00:29:49,320 --> 00:29:52,120 Speaker 1: and you're forcing the sale of it. And it says 524 00:29:52,160 --> 00:29:55,760 Speaker 1: if you would force the sale of politico or twitter 525 00:29:56,080 --> 00:29:58,800 Speaker 1: x because you don't like the owner, because the government 526 00:29:58,880 --> 00:30:01,720 Speaker 1: doesn't like who's control, and you're going to force a 527 00:30:01,880 --> 00:30:05,600 Speaker 1: sale of it, they say that's unprecedented for the government 528 00:30:05,760 --> 00:30:08,440 Speaker 1: to use that level of control and to do it 529 00:30:08,560 --> 00:30:11,400 Speaker 1: for secret reasons. A lot of the evidence was secret, 530 00:30:11,520 --> 00:30:14,880 Speaker 1: and so the briefing focused on that issue. The argument 531 00:30:15,040 --> 00:30:17,680 Speaker 1: focused on the First Amendment issue, but probably not in 532 00:30:17,720 --> 00:30:19,680 Speaker 1: the ways that TikTok would have liked. 533 00:30:19,920 --> 00:30:22,320 Speaker 2: Tell us why TikTok didn't fare well. 534 00:30:22,440 --> 00:30:25,920 Speaker 1: Yeah, I thought it was a very tough day for TikTok. 535 00:30:26,240 --> 00:30:29,360 Speaker 1: Even though the court explored the First Amendment issue, it 536 00:30:29,440 --> 00:30:32,360 Speaker 1: didn't do it in the ways that I think TikTok 537 00:30:32,400 --> 00:30:36,280 Speaker 1: would most like. TikTok really pushed the arguments that this 538 00:30:36,360 --> 00:30:39,880 Speaker 1: should be subject to strict scrutiny, which is the highest 539 00:30:40,000 --> 00:30:43,080 Speaker 1: level of First Amendent scrutiny, and it's very tough for 540 00:30:43,120 --> 00:30:45,640 Speaker 1: the government to win a case that is governed by 541 00:30:45,680 --> 00:30:49,120 Speaker 1: that standard. I saw little appetite from the three judges 542 00:30:49,200 --> 00:30:52,160 Speaker 1: on the panel to go to strict scrutiny. They didn't 543 00:30:52,200 --> 00:30:54,240 Speaker 1: want to go there. Where they wanted to go was 544 00:30:54,360 --> 00:30:58,080 Speaker 1: intermediate scrutiny, which is an easier test for the government 545 00:30:58,200 --> 00:31:01,160 Speaker 1: to pass, and so I think that was a concern. 546 00:31:01,560 --> 00:31:05,920 Speaker 1: One of the judges on the panel, Naomi Rao Trumpt appointee, 547 00:31:06,240 --> 00:31:09,160 Speaker 1: brought up a nineteen eighty eight case that the government 548 00:31:09,280 --> 00:31:13,240 Speaker 1: hadn't even cited about the government's ability to shut down 549 00:31:13,840 --> 00:31:17,800 Speaker 1: an office with ties to a foreign country of concern 550 00:31:18,520 --> 00:31:21,640 Speaker 1: and said, look, we rejected a First Amendment case in 551 00:31:21,720 --> 00:31:25,920 Speaker 1: that and similarly, another judge, Douglas Ginsburg, a Reagan appointee 552 00:31:25,920 --> 00:31:30,280 Speaker 1: on the panel, really expressed sympathy for the government's interest 553 00:31:30,720 --> 00:31:34,880 Speaker 1: in managing national security threats and foreign affairs. You know, 554 00:31:34,960 --> 00:31:38,600 Speaker 1: TikTok pushed the point that, look, Congress never made findings 555 00:31:38,800 --> 00:31:42,720 Speaker 1: about what is wrong with TikTok. They passed this very quickly, 556 00:31:43,080 --> 00:31:44,760 Speaker 1: and if you look at the law, there are no 557 00:31:45,640 --> 00:31:49,040 Speaker 1: reports tied to this legislation saying why you needed to 558 00:31:49,080 --> 00:31:52,760 Speaker 1: take this extreme measure. I thought that might get more 559 00:31:52,800 --> 00:31:56,600 Speaker 1: traction with these judges, but instead they were much more 560 00:31:56,920 --> 00:32:02,840 Speaker 1: deferential to Congress, much more concerned about stepping on Congress 561 00:32:03,000 --> 00:32:06,600 Speaker 1: on a national security matter, something these judges aren't expert on. 562 00:32:07,320 --> 00:32:10,680 Speaker 1: Neilmi Rao at one point said, look, you're asking us 563 00:32:10,720 --> 00:32:13,440 Speaker 1: to treat Congress like an agency the way we would 564 00:32:13,480 --> 00:32:16,080 Speaker 1: review a federal agency, and we don't do that in 565 00:32:16,160 --> 00:32:19,200 Speaker 1: the same way. And basically, there was a sense that 566 00:32:19,240 --> 00:32:22,440 Speaker 1: they were going to be much more deferential to Congress's 567 00:32:22,520 --> 00:32:25,680 Speaker 1: judgments on these national security threats. And so if I 568 00:32:25,800 --> 00:32:28,360 Speaker 1: was TikTok walking out of that argument, I would be 569 00:32:28,440 --> 00:32:29,440 Speaker 1: concerned the. 570 00:32:29,720 --> 00:32:32,600 Speaker 2: Government's lawer said, there are just reams of information that 571 00:32:32,640 --> 00:32:35,880 Speaker 2: are going back to China. Is the information secret and 572 00:32:35,920 --> 00:32:39,560 Speaker 2: we haven't seen it, or is there no information that 573 00:32:39,640 --> 00:32:41,959 Speaker 2: they keep claiming that TikTok is a threat. 574 00:32:42,200 --> 00:32:45,640 Speaker 1: I think the government is willing to concede that so 575 00:32:45,800 --> 00:32:50,400 Speaker 1: far they haven't seen direct evidence of China doing what 576 00:32:50,440 --> 00:32:56,720 Speaker 1: they're most concerned about, China influencing the propaganda, or China 577 00:32:57,000 --> 00:33:01,040 Speaker 1: diving into this personal data. What the govern government has said, though, 578 00:33:01,200 --> 00:33:05,080 Speaker 1: is that there is an extreme risk with this setup, 579 00:33:05,240 --> 00:33:09,440 Speaker 1: with allowing a parent of TikTok to be in China, 580 00:33:10,000 --> 00:33:13,880 Speaker 1: and that in itself is so inherently risky that it's 581 00:33:14,000 --> 00:33:17,240 Speaker 1: reasonable for the government to proactively address it and not 582 00:33:17,320 --> 00:33:20,920 Speaker 1: to shut down TikTok necessarily, but to say that you 583 00:33:21,000 --> 00:33:23,720 Speaker 1: will be shut down unless you sell the company to 584 00:33:23,800 --> 00:33:26,920 Speaker 1: someone that doesn't have a parent in China. And we're 585 00:33:26,960 --> 00:33:29,120 Speaker 1: kind of reading through the lines a little bit because 586 00:33:29,760 --> 00:33:35,240 Speaker 1: a lot of the briefing material was redacted and confidential. 587 00:33:35,920 --> 00:33:39,360 Speaker 1: I think dozens of pages in the government's brief, but 588 00:33:39,440 --> 00:33:41,920 Speaker 1: I do think in other parts that weren't redacted, they 589 00:33:41,920 --> 00:33:45,760 Speaker 1: did concede that we don't have hard evidence of this happening. Yet, 590 00:33:45,840 --> 00:33:47,760 Speaker 1: and so I thought TikTok might get a little more 591 00:33:47,880 --> 00:33:50,480 Speaker 1: traction on the fact that the government's doing a lot 592 00:33:50,520 --> 00:33:53,960 Speaker 1: of this for secret reasons. And what's really remarkable. Sometimes 593 00:33:54,000 --> 00:33:58,280 Speaker 1: you'll see cases with redacted information that the public can't see, 594 00:33:58,280 --> 00:34:01,200 Speaker 1: but at least both sides of the case can see it. Here, 595 00:34:01,480 --> 00:34:05,280 Speaker 1: even TikTok can't see the evidence against it. The government 596 00:34:05,360 --> 00:34:07,760 Speaker 1: was only sharing this information with the courts on an 597 00:34:07,760 --> 00:34:10,719 Speaker 1: ex part day basis, and so that's sort of remarkable 598 00:34:10,800 --> 00:34:12,919 Speaker 1: in a first anemic case. But if you look through 599 00:34:12,960 --> 00:34:16,400 Speaker 1: the transcript of yesterday's two hour hearing, that got mentioned 600 00:34:16,680 --> 00:34:20,560 Speaker 1: hardly at all. And so TikTok, Yeah, TikTok made very 601 00:34:20,600 --> 00:34:24,440 Speaker 1: little traction about raising concerns about the government using secret 602 00:34:24,440 --> 00:34:27,640 Speaker 1: evidence for this, and instead, you know, you heard a 603 00:34:27,640 --> 00:34:30,840 Speaker 1: lot about sympathy to the government in addressing a national 604 00:34:30,880 --> 00:34:35,200 Speaker 1: security threat. So concerning if your TikTok, I'd think you. 605 00:34:35,160 --> 00:34:38,560 Speaker 2: Give TikTok just a twenty percent chance of a success 606 00:34:38,600 --> 00:34:39,720 Speaker 2: at the DC circuit. 607 00:34:40,200 --> 00:34:40,560 Speaker 4: Yeah. 608 00:34:40,600 --> 00:34:43,360 Speaker 1: So, I mean, going into this argument, I viewed this 609 00:34:43,400 --> 00:34:46,480 Speaker 1: as a very close case, and on the briefing, I 610 00:34:46,520 --> 00:34:49,920 Speaker 1: thought TikTok did a pretty good job of raising concerns 611 00:34:49,960 --> 00:34:53,360 Speaker 1: that might give these judges pause about allowing such a 612 00:34:53,440 --> 00:34:58,439 Speaker 1: drastic measure. But TikTok got so little traction with those 613 00:34:58,480 --> 00:35:02,000 Speaker 1: three judges yesterday. Two of the three the two Republican 614 00:35:02,080 --> 00:35:05,360 Speaker 1: appointed judges on the panel. You know, I find it 615 00:35:05,560 --> 00:35:09,040 Speaker 1: very difficult to see them ruling for TikTok. The Obama 616 00:35:09,160 --> 00:35:12,480 Speaker 1: appointee maybe he was a little more more neutral on 617 00:35:12,520 --> 00:35:16,040 Speaker 1: the panel, but still, most likely this is going to 618 00:35:16,120 --> 00:35:20,000 Speaker 1: lead to a decision at the DC Circuit that upholds 619 00:35:20,239 --> 00:35:25,280 Speaker 1: Congress's law and most likely leaves that January nineteenth deadline 620 00:35:25,360 --> 00:35:28,239 Speaker 1: for an effective man in place. And so I think 621 00:35:28,440 --> 00:35:32,480 Speaker 1: I think we're likely to see that decision by early December. 622 00:35:33,239 --> 00:35:38,400 Speaker 2: TikTok, if it loses, could appeal to the full DC Circuit, 623 00:35:38,600 --> 00:35:43,320 Speaker 2: which would have more Democratic appointees on it, or could 624 00:35:43,360 --> 00:35:45,520 Speaker 2: try to go to the Supreme Court. What do you 625 00:35:45,560 --> 00:35:46,759 Speaker 2: think it's likely to do? 626 00:35:47,160 --> 00:35:50,360 Speaker 1: That's exactly right. So the problem here is that time 627 00:35:50,560 --> 00:35:54,839 Speaker 1: is extremely tight. Normally you'd pursue every option you can. 628 00:35:55,120 --> 00:35:58,319 Speaker 1: And so, okay, let's try from asking the full DC 629 00:35:58,480 --> 00:36:01,040 Speaker 1: Circuit first and if that fails, and then we'll go 630 00:36:01,160 --> 00:36:03,200 Speaker 1: to the Supreme Court. But when TikTok has to do 631 00:36:03,320 --> 00:36:05,880 Speaker 1: all of this by January nineteenth, then it might not 632 00:36:06,000 --> 00:36:10,040 Speaker 1: see a decision until maybe December. So time could be 633 00:36:10,160 --> 00:36:14,160 Speaker 1: really short here. And if this decision goes the way 634 00:36:14,440 --> 00:36:17,800 Speaker 1: I think is most likely at the DC's Circuit with s. 635 00:36:17,800 --> 00:36:21,680 Speaker 1: Shrievasen he's the chief judge, was the Obama appointee on 636 00:36:21,719 --> 00:36:25,640 Speaker 1: this panel. If he rules against TikTok, and to Republican 637 00:36:25,680 --> 00:36:29,200 Speaker 1: appointed judges rule against TikTok, I don't think there's going 638 00:36:29,239 --> 00:36:32,680 Speaker 1: to be much chance that En Bank the DC Circuit 639 00:36:32,719 --> 00:36:35,520 Speaker 1: is going to second guest those three judges. And given 640 00:36:35,760 --> 00:36:38,799 Speaker 1: the shortness of time, I think TikTok says, look, we're 641 00:36:38,840 --> 00:36:41,360 Speaker 1: not going to win at the DC Circuit. Let's try 642 00:36:41,640 --> 00:36:44,720 Speaker 1: at the Supreme Court. That's our best bet. And asking 643 00:36:44,760 --> 00:36:48,880 Speaker 1: the Supreme Court justices this is such an unprecedented First 644 00:36:48,880 --> 00:36:52,000 Speaker 1: Amendment issue for the government to do this, we should 645 00:36:52,040 --> 00:36:55,840 Speaker 1: at least ask the Supreme Court to freeze this January 646 00:36:55,920 --> 00:36:59,640 Speaker 1: nineteenth deadline and take up this case to consider the 647 00:36:59,680 --> 00:37:02,560 Speaker 1: employ First Amendment issues. And so I think that's what 648 00:37:02,600 --> 00:37:05,799 Speaker 1: you'll see if TikTok loses in December, is an emergency 649 00:37:05,920 --> 00:37:08,680 Speaker 1: request to the Supreme Court to hit pause on this, 650 00:37:09,200 --> 00:37:12,480 Speaker 1: low this down, and let's think about whether the government 651 00:37:12,560 --> 00:37:16,000 Speaker 1: really satisfied the First Amendment or not, because. 652 00:37:15,800 --> 00:37:18,439 Speaker 2: It doesn't seem like this Supreme Court would be any 653 00:37:18,480 --> 00:37:22,200 Speaker 2: more sympathetic than the judges at the DC Circuit. 654 00:37:21,800 --> 00:37:24,839 Speaker 1: Were I agree with you. And especially one thing that 655 00:37:24,880 --> 00:37:27,799 Speaker 1: came up at the DC Circuit yesterday was when the 656 00:37:27,840 --> 00:37:31,600 Speaker 1: Supreme Court on July first decided the Net Choice case, 657 00:37:31,640 --> 00:37:34,960 Speaker 1: the First Amendment case. There, Justice Barrett put in a 658 00:37:35,000 --> 00:37:37,839 Speaker 1: sentence in her opinion that said, look, even though look, 659 00:37:38,040 --> 00:37:41,800 Speaker 1: this opinion gives First Amendment rights to these social media companies, 660 00:37:41,960 --> 00:37:45,319 Speaker 1: maybe the analysis is different when there are ties to 661 00:37:45,600 --> 00:37:49,120 Speaker 1: a foreign company. And the judges at the DC Circuit 662 00:37:49,160 --> 00:37:52,759 Speaker 1: yesterday kind of latched onto that and said, yes, it's 663 00:37:52,800 --> 00:37:56,320 Speaker 1: different in matters of foreign control. And with the Supreme 664 00:37:56,360 --> 00:38:01,760 Speaker 1: Court makeup of six Republican appointed judges three Democrat appointed judges, 665 00:38:02,000 --> 00:38:05,239 Speaker 1: I think it's very likely that a majority of that 666 00:38:05,360 --> 00:38:09,560 Speaker 1: court is going to agree with this panel for DC Circuit, 667 00:38:09,600 --> 00:38:14,360 Speaker 1: which also is to Republican appointed judges one Democrat appointed judge. 668 00:38:14,520 --> 00:38:17,440 Speaker 1: It's going to be a really tough decision to reverse 669 00:38:17,680 --> 00:38:20,759 Speaker 1: at the Supreme Court. I think TikTok is really up 670 00:38:20,800 --> 00:38:23,680 Speaker 1: against it in trying to do that. It is possible, 671 00:38:23,960 --> 00:38:26,960 Speaker 1: I guess that the Supreme Court would say, look, it's 672 00:38:27,000 --> 00:38:29,880 Speaker 1: at least important, and so this is important enough, we 673 00:38:29,920 --> 00:38:33,360 Speaker 1: should hear it and slow it down. But TikTok ultimately 674 00:38:33,400 --> 00:38:36,200 Speaker 1: winning is going to be a really tough sell with 675 00:38:36,280 --> 00:38:37,080 Speaker 1: the Supreme Court. 676 00:38:37,320 --> 00:38:41,040 Speaker 2: Great analysis, Matt, not for TikTok, though, Thanks so much. 677 00:38:41,440 --> 00:38:46,520 Speaker 2: That's Matthew Shettenhelm, Bloomberg Intelligence, Litigation and Government analyst. And 678 00:38:46,560 --> 00:38:48,840 Speaker 2: that's it for this edition of the Bloomberg Law Show. 679 00:38:49,200 --> 00:38:51,480 Speaker 2: Remember you can always get the latest legal news by 680 00:38:51,520 --> 00:38:55,279 Speaker 2: subscribing to the Bloomberg Law Podcast or downloading this show 681 00:38:55,320 --> 00:38:59,160 Speaker 2: at Bloomberg dot com, slash podcast, slash Law. I'm Drewan 682 00:38:59,160 --> 00:39:00,920 Speaker 2: Brosso in your listen ink to Boomberg