WEBVTT - Another Blow to Gay Rights Likely 0:00:03.160 --> 0:00:07.960 This is Bloomberg Law with June Brusso from Bloomberg Radio. 0:00:08.960 --> 0:00:11.320 In a class that fits the rights of same sex 0:00:11.360 --> 0:00:15.600 couples against free speech, the conservative justices on the Supreme 0:00:15.640 --> 0:00:18.919 Court appear ready to side with a website designer who 0:00:18.960 --> 0:00:21.680 says she has a free speech right to refuse to 0:00:21.720 --> 0:00:25.880 create websites for same sex weddings because of her Christian faith. 0:00:26.239 --> 0:00:30.040 Liberal Justice Sonya Sotomayor said that a decision allowing the 0:00:30.080 --> 0:00:33.680 designer to turn away same sex couples would be a first. 0:00:34.440 --> 0:00:37.960 This would be the first time in the Court's history 0:00:38.880 --> 0:00:43.800 correct that it would say that a business opened to 0:00:43.920 --> 0:00:48.360 the public, a commercial business open to the public serving 0:00:48.400 --> 0:00:52.240 the public, that it could refuse to serve a customer 0:00:53.280 --> 0:00:59.680 based on race, sex, religion, or sexual orientation. But several 0:00:59.680 --> 0:01:04.080 of the conservative justices focused on the designers stated intention 0:01:04.200 --> 0:01:08.479 to create customized wedding sites and the difference between businesses 0:01:08.560 --> 0:01:13.400 engaged in expression and one simply selling products. Here's Justice 0:01:13.440 --> 0:01:19.640 Brett Kavanaugh, how do you characterize website designers? Are they 0:01:19.680 --> 0:01:24.320 more like the restaurants and the jewelers and the tailors, 0:01:24.560 --> 0:01:28.320 or they more like, uh, you know, the publishing houses 0:01:28.360 --> 0:01:33.280 and the other free speech analogs. My guest is constitutional 0:01:33.360 --> 0:01:36.640 law expert Michael Dorff, a professor at Cornell Law School. 0:01:37.000 --> 0:01:41.200 Under Colorado law, a business may not refuse to serve 0:01:41.240 --> 0:01:45.280 individuals because of their sexual orientation. How is freedom of 0:01:45.319 --> 0:01:51.680 speech involved? So, the petitioner argues that her web design 0:01:51.880 --> 0:01:57.360 business is inherently expressive because when clients come to her 0:01:57.360 --> 0:02:00.919 and say they want her to design a wedding website, 0:02:01.160 --> 0:02:05.400 she puts various creative efforts into it to fashion a 0:02:05.840 --> 0:02:11.040 bespoke website, and in so doing she is creating speech 0:02:11.400 --> 0:02:14.840 thus speaking, and if the government tells her she must 0:02:14.880 --> 0:02:19.160 create same sex wedding websites, it is forcing her to 0:02:19.360 --> 0:02:23.560 espouse a message the tacit approval of same sex marriage 0:02:23.880 --> 0:02:27.040 that is inconsistent with her beliefs tell us now. The 0:02:27.280 --> 0:02:32.920 justices responded to this claim. Some of them were skeptical 0:02:33.280 --> 0:02:36.639 of whether there really was any expression at all here. 0:02:36.680 --> 0:02:40.600 I think Justice Sonia Sotomayor was the most skeptical. She 0:02:40.680 --> 0:02:44.640 wanted to know how this is speech by Laurie Smith, 0:02:44.800 --> 0:02:48.639 the owner of the web design company, given that it's 0:02:48.760 --> 0:02:52.000 essentially for the couple. Right, part of the point is 0:02:52.040 --> 0:02:54.960 that it's not speech endorsing same sex marriage at all. 0:02:55.040 --> 0:02:57.919 It's simply saying things like, here's the date of the wedding, 0:02:58.080 --> 0:03:01.480 here's the venue. Here direct and here's a registry, here's 0:03:01.520 --> 0:03:04.440 how we met, etcetera. So there's skepticism that it's the 0:03:04.600 --> 0:03:08.680 web designers speech at all, and then there's a question 0:03:08.720 --> 0:03:12.480 of whether it's speech that endorses this particular message. So 0:03:12.520 --> 0:03:15.079 that's at one end. At the other end of the spectrum, 0:03:15.120 --> 0:03:17.880 you had Justice Alito and some of the other justices 0:03:18.240 --> 0:03:22.000 who seem to just accept that, of course this is expressive, 0:03:22.040 --> 0:03:25.560 and they gave some hypothetical examples where you pretty clearly 0:03:25.639 --> 0:03:29.160 would have expression. For example, you know, if you had 0:03:29.200 --> 0:03:31.960 to put on the website, I the web designer, believe 0:03:32.080 --> 0:03:35.000 that God blesses this marriage, or even just God blesses 0:03:35.000 --> 0:03:37.320 this marriage. I think some of the justice has had 0:03:37.560 --> 0:03:41.040 the view that there certainly is expression here and it 0:03:41.120 --> 0:03:44.680 could be understood as expression endorsing same sex marriage. And 0:03:44.680 --> 0:03:48.160 then the question is does the state get to override 0:03:48.200 --> 0:03:52.320 that because they have a public accommodations law And what 0:03:52.400 --> 0:03:57.080 about the argument they're making about expressive works. Oh, this 0:03:57.240 --> 0:04:00.440 is hardly new. So a very similar case was before 0:04:00.440 --> 0:04:05.120 the Supreme Court in seventeen, also from Colorado. That case 0:04:05.240 --> 0:04:09.280 involved a baker, the so called Masterpiece Cake Shop case, 0:04:09.440 --> 0:04:14.880 and there too, the business owner objected to providing services 0:04:15.000 --> 0:04:17.080 for a same sex wedding on the ground that he 0:04:17.120 --> 0:04:20.920 opposed same sex marriage. In that case, the court had 0:04:20.960 --> 0:04:23.560 before it the same argument that has here, but it 0:04:23.640 --> 0:04:27.680 also had a claim of religious discrimination, and a majority 0:04:27.720 --> 0:04:30.760 of the court decided the case on that ground without 0:04:30.839 --> 0:04:34.440 addressing the free speech issue. But I should say that 0:04:34.640 --> 0:04:38.960 these arguments go back as far as the nineteen sixties 0:04:39.360 --> 0:04:43.080 when Congress enacted the nineteen sixty four Civil Rights Act 0:04:43.160 --> 0:04:47.080 that includes titled two with the Public Accommodations Provision, and 0:04:47.240 --> 0:04:50.520 some business owners during the tail end of the Jim 0:04:50.600 --> 0:04:53.880 Crow era said that it would be inconsistent with either 0:04:53.920 --> 0:04:58.720 their religious or speech views to serve African American customers 0:04:58.720 --> 0:05:02.279 either at all or in an integraded setting. And the 0:05:02.480 --> 0:05:08.200 claims then were pretty quickly rejected by the courts. The 0:05:08.360 --> 0:05:12.720 justices are considering only her free speech arguments, not her 0:05:12.760 --> 0:05:18.000 religious rights arguments. Did the justices jettison the religious rights 0:05:18.040 --> 0:05:20.479 part of the case so they'll be able to say, 0:05:20.600 --> 0:05:25.080 the conservative justices, well, this is free speech, not free exercise. 0:05:25.240 --> 0:05:29.200 Of religion against same sex marriage. Well, I'm not sure 0:05:29.240 --> 0:05:32.440 why they decided not to take the religion question, but 0:05:32.520 --> 0:05:35.560 it was apparent throughout the argument that even though as 0:05:35.600 --> 0:05:38.400 a technical matter they're not going to decide and can't 0:05:38.400 --> 0:05:43.039 decide the case on religious freedom grounds, this is understood 0:05:43.080 --> 0:05:47.919 to be religiously motivated speech. And of course everybody understands 0:05:48.160 --> 0:05:53.680 that part of what sets this up in a conservative 0:05:53.839 --> 0:05:58.920 liberal ideological space, so that the conservatives come in sympathetic 0:05:59.000 --> 0:06:02.000 to the claimant and liberals come in sympathetic to the state. 0:06:02.720 --> 0:06:07.080 That might not necessarily be the political valence if we 0:06:07.200 --> 0:06:10.599 imagined a very different law, and they're very different circumstances 0:06:10.640 --> 0:06:14.400 with different speakers. But the religious dimension of it, I 0:06:14.440 --> 0:06:18.479 think is below the surface, if not expressly part of 0:06:18.520 --> 0:06:23.080 the case. There is a lot of discussion about race 0:06:23.160 --> 0:06:29.440 discrimination here. The liberal justices express concern that this argument 0:06:29.440 --> 0:06:31.960 would open the door to discrimination on the basis of 0:06:32.080 --> 0:06:35.520 race or disability. Justice Soda Mayor said, how about people 0:06:35.560 --> 0:06:38.800 who don't believe in interracial marriage, or about people who 0:06:38.800 --> 0:06:41.920 don't believe that disabled people should get married? Where is 0:06:41.960 --> 0:06:45.599 the line? That is a question? Where is the line here? Yeah, 0:06:45.640 --> 0:06:49.360 so that's right there were a whole series of hypothetical examples. 0:06:49.440 --> 0:06:53.800 One that Justice Jackson gave, which I think was intriguing, 0:06:53.880 --> 0:06:57.799 was she imagined a Santa Clause in a mall who 0:06:57.920 --> 0:07:02.680 takes photos with and the Santa Claus takes photographs with 0:07:02.760 --> 0:07:05.320 children of all races, but says that there's a certain 0:07:05.440 --> 0:07:08.600 kind of photograph sort of it's a wonderful life kind 0:07:08.600 --> 0:07:11.440 of photograph that he only takes with white children because 0:07:11.440 --> 0:07:13.640 it's got a sort of nostalgic element and that's part 0:07:13.640 --> 0:07:16.200 of his artistic expression. So it's not that he doesn't 0:07:16.200 --> 0:07:18.600 serve African American children, but he excludes him from that. 0:07:19.080 --> 0:07:23.960 And presumably a Colorado style public accommodations law would say, well, 0:07:24.000 --> 0:07:26.760 you can't do that. And the argument of the petitioner 0:07:26.840 --> 0:07:29.960 here would say, well, that Santa Claus gets to exclude 0:07:30.000 --> 0:07:33.080 the African American children from that kind of photograph, which 0:07:33.120 --> 0:07:37.840 seems problematic. Justice Alito countered with his own Santa Claus example. 0:07:37.920 --> 0:07:40.520 So he imagined an African American Santa Claus at the 0:07:40.520 --> 0:07:43.559 other end of the mall and a child who wants 0:07:43.600 --> 0:07:47.320 to be photographed in a ku Klux Klan outfit. And 0:07:47.640 --> 0:07:51.040 the point of his example, I think was to generate 0:07:51.120 --> 0:07:54.360 the intuition that the African American Santa Claus shouldn't have 0:07:54.400 --> 0:07:57.320 to do that. And I thought there was a good 0:07:57.360 --> 0:08:00.280 response to that that got kind of washed over pretty ically, 0:08:00.640 --> 0:08:04.119 which was that there is no public accommodations law saying 0:08:04.160 --> 0:08:07.240 you have to serve people even if they're in clan outfits, 0:08:07.520 --> 0:08:09.960 at least not in Colorado, not at the federal level. Now, 0:08:09.960 --> 0:08:13.520 it's true that there are some state laws that say 0:08:13.600 --> 0:08:16.520 you can't discriminate in your business on the basis of 0:08:16.560 --> 0:08:20.440 the politics or ideology of your customers. And so maybe 0:08:20.880 --> 0:08:24.440 in one of those states that law would mean that 0:08:24.560 --> 0:08:27.360 the African American Santa Claus would have to take the 0:08:27.400 --> 0:08:30.680 photo with the child in the clan outfit. But you 0:08:30.760 --> 0:08:33.160 might say, and I would be inclined to say, that 0:08:33.240 --> 0:08:37.920 the state doesn't have the same compelling interest in forbidding 0:08:37.960 --> 0:08:41.520 discrimination on the basis of political viewpoints that it does 0:08:41.920 --> 0:08:45.440 in preventing the discrimination on the basis of an identity 0:08:45.520 --> 0:08:51.600 characteristic such as ray sex, sexual orientation, gender identity, or disability. 0:08:51.640 --> 0:08:55.320 After all, you can always go into the store and 0:08:55.400 --> 0:08:57.920 you know, take off your Maga hat or your A 0:08:58.000 --> 0:09:02.160 C l U pin if you're worried it about viewpoint discrimination. 0:09:02.960 --> 0:09:05.559 You can't you know, change who you are in these 0:09:05.600 --> 0:09:07.800 other settings, nor should you have to even if you can, 0:09:07.920 --> 0:09:12.120 you know, be closeted for purposes of getting service. Yeah, 0:09:12.160 --> 0:09:17.360 I mean there were so many hypotheticals and some for example, 0:09:17.600 --> 0:09:22.760 what happens if an architect whose work is expressive refuses 0:09:22.800 --> 0:09:26.640 to work for black customers? I mean, none of those 0:09:26.640 --> 0:09:29.439 were answered sufficiently. I think that's right. So I think 0:09:29.440 --> 0:09:33.240 it's very tempting to want to go where David Cole, 0:09:33.360 --> 0:09:35.480 the National legal director of the a c L. You 0:09:35.520 --> 0:09:37.400 went in a brief at the a c L you 0:09:37.520 --> 0:09:39.360 filed and in a New York Times op ed that 0:09:39.440 --> 0:09:41.880 he published under his own name, which is to say 0:09:41.920 --> 0:09:44.880 that none of these claims really should get off the ground. 0:09:45.280 --> 0:09:47.400 Of course, you have a right to free speech, but 0:09:47.920 --> 0:09:50.760 when you go out into the marketplace and offer your services, 0:09:50.840 --> 0:09:53.559 you're going to have to take some lumps, because otherwise 0:09:53.760 --> 0:09:56.800 everybody in virtually any trade or craft is going to 0:09:56.840 --> 0:09:59.520 say that there's some expressive element. Right. Think about a 0:09:59.559 --> 0:10:03.480 bart Sure bartender just provides drinks, but we know that 0:10:03.600 --> 0:10:06.640 part of being a bartender is talking to the patrons 0:10:06.640 --> 0:10:08.840 at the bar and you might not want to engage 0:10:08.840 --> 0:10:11.440 in certain conversations with certain people because you'll have to 0:10:11.480 --> 0:10:14.560 express views that are polite and therefore could be taken 0:10:14.600 --> 0:10:17.520 as endorsing their lifestyle or whatever it is. So if 0:10:17.559 --> 0:10:21.000 the Court goes down this road and wants to say, well, 0:10:21.320 --> 0:10:25.640 there's some occupations, some services, some goods that are more 0:10:25.679 --> 0:10:28.400 inherently expressive than others, it's going to have a lot 0:10:28.440 --> 0:10:31.480 of cases for a long time trying to draw those lines. 0:10:31.720 --> 0:10:34.679 Why do you think that Justices took this case over 0:10:34.720 --> 0:10:37.520 the rights of same sex couples at a time when 0:10:37.559 --> 0:10:40.600 there's so much concern that the Court will reverse the 0:10:40.679 --> 0:10:43.720 right to same sex marriage, just as it reversed the 0:10:43.800 --> 0:10:46.120 right to abortion. I mean, that's the reason for the 0:10:46.160 --> 0:10:49.880 same sex marriage bill. I think they took it for 0:10:50.600 --> 0:10:53.520 at least two sorts of reasons. One is that the 0:10:53.600 --> 0:10:57.480 timing is somewhat accidental. This was an issue that they 0:10:57.600 --> 0:11:01.680 did want to address in twenties mainteen. They punted then, 0:11:01.840 --> 0:11:04.240 and it's sort of been around since then. And that 0:11:04.280 --> 0:11:08.080 was from before the Court's decision overruling rob Wade and 0:11:08.360 --> 0:11:11.280 thus raising the possibility of the overruling of other cases, 0:11:11.360 --> 0:11:15.000 including a Burger Fell against HADJ is the case recognizing 0:11:15.000 --> 0:11:17.680 a right to same sex marriage. The second reason, though, 0:11:17.720 --> 0:11:21.520 I think, is that especially the conservative justices on this 0:11:21.640 --> 0:11:28.480 court want to limit the scope of lgbt Q plus equality, 0:11:28.559 --> 0:11:32.920 at least insofar as they see it infringing on conservative 0:11:33.120 --> 0:11:39.680 religious lifestyles. There's a line in Justice Kennedy's majority opinion 0:11:40.160 --> 0:11:42.959 in the Burger Filt case in which he says that 0:11:43.080 --> 0:11:47.280 many people oppose same sex marriage based on honorable and 0:11:47.400 --> 0:11:52.280 decent religious or philosophical principles. Now, when Justice Kennedy wrote that, 0:11:52.480 --> 0:11:55.400 just the leado in dissent mocked it is saying, well, sure, 0:11:55.679 --> 0:11:57.880 you're saying that they're entitled to have these principles, are 0:11:57.920 --> 0:12:00.400 just not entitled to act on them. But since then 0:12:00.559 --> 0:12:03.440 he and some of the other conservative justices have sort 0:12:03.440 --> 0:12:05.600 of taken that up as a banner to say, well, 0:12:05.760 --> 0:12:08.080 if it's decent and honorable, then people should be able 0:12:08.120 --> 0:12:11.480 to opt out. That wanting to oppose same sex marriage 0:12:11.480 --> 0:12:14.520 is not the same thing. It's not morally equivalent to 0:12:14.640 --> 0:12:17.600 race discrimination, and so they want to sort of carve 0:12:17.640 --> 0:12:21.520 a hole in anti discrimination law. Indeed, you might even 0:12:21.600 --> 0:12:24.320 look at just as Gorsuch, who after all wrote the 0:12:24.360 --> 0:12:29.400 court's opinion in the case, finding that discrimination on the 0:12:29.440 --> 0:12:33.840 basis of sexual orientation and gender identity are forbidden by 0:12:33.960 --> 0:12:37.880 the Federal employment anti discrimination law. That having sort of 0:12:38.160 --> 0:12:42.640 established his bona fides as not a homophob or transphobe 0:12:42.640 --> 0:12:45.680 in those cases, he now wants to say, but don't worry, 0:12:45.679 --> 0:12:47.520 I'm going to give something to the other side by 0:12:47.600 --> 0:12:53.160 giving this carve out or religiously motivated expression or opposition 0:12:54.440 --> 0:12:57.720 your said ruling for the web designer here would be 0:12:57.760 --> 0:13:00.800 the first time in Supreme Court history to allow a 0:13:00.880 --> 0:13:03.840 business open to the general public to refuse to serve 0:13:03.880 --> 0:13:08.200 a customer based on race, sex, religion, or sexual orientation. 0:13:08.800 --> 0:13:12.360 So how do the conservatives make a carve out that 0:13:12.760 --> 0:13:17.160 doesn't characterize this as inviting business to be exempt from 0:13:17.160 --> 0:13:21.080 civil rights laws? Well, so, I mean, she's right, but 0:13:21.160 --> 0:13:24.560 only because we defined you know, that narrowly. After all, 0:13:24.600 --> 0:13:27.280 in the hobby lobby case, and I believe it was 0:13:28.360 --> 0:13:32.400 the Court gave a carve out from statute and regulations 0:13:32.400 --> 0:13:37.280 requiring the provision of health insurance that covers contraception to 0:13:37.640 --> 0:13:41.040 religiously motivated business owners, and that was in the context 0:13:41.080 --> 0:13:45.080 of employment rather than public accommodations, but it's also a 0:13:45.120 --> 0:13:48.640 carve out from antidiscrimination law, also based in sort of 0:13:48.679 --> 0:13:52.200 conservative religious principles. Part of the reason the Court would 0:13:52.200 --> 0:13:53.760 be doing this for the first time, I think, is 0:13:53.800 --> 0:13:56.600 because it's the first time they're addressing it in this 0:13:56.720 --> 0:13:59.760 specific context. Although I do think Justice of my Aora 0:13:59.840 --> 0:14:03.000 is right herketing back to those cases from the nineties 0:14:03.440 --> 0:14:07.960 and seventies in which they dismiss the proposed exceptions with 0:14:08.040 --> 0:14:10.520 respect to race. But I think the answer to the 0:14:10.600 --> 0:14:13.960 question of how does the Court prevent people from perceiving 0:14:14.120 --> 0:14:18.680 this as them, you know, taking sides, you know, against 0:14:18.840 --> 0:14:21.960 anti discrimination law, is that they can't. They can't control 0:14:22.240 --> 0:14:26.200 how their decisions are perceived. I actually would share that perception. 0:14:26.280 --> 0:14:29.040 I'm you know, I'm sympathetic to the position articulated by 0:14:29.040 --> 0:14:31.720 Justice so to Mayor, but I think this Court has 0:14:31.760 --> 0:14:37.240 shown that they're not all that attuned to or concerned 0:14:37.280 --> 0:14:41.320 about how the public perceives them. Chief Justice Roberts seemed 0:14:41.400 --> 0:14:43.960 more concerned about that early in his career, and maybe 0:14:44.040 --> 0:14:47.000 still is, but he's lost control of this court. I 0:14:47.040 --> 0:14:49.880 know you can't get everything from these oral arguments, but 0:14:50.160 --> 0:14:52.880 what do you see as the result here, I think 0:14:52.880 --> 0:14:56.160 it's likely that three to three creative and MS Smith, 0:14:56.360 --> 0:14:59.400 the owner of the web design company, will win. I 0:14:59.440 --> 0:15:02.520 think that at chief Justice Roberts will either write the 0:15:02.560 --> 0:15:04.800 opinion himself or try to assign it to one of 0:15:04.880 --> 0:15:08.640 his colleagues, likely Justice Barrett or Justice Kavanaugh, who he 0:15:08.720 --> 0:15:13.400 thinks will write a somewhat narrow opinion that doesn't open 0:15:13.480 --> 0:15:16.520 the door to the complete gutting of anti discrimination law, 0:15:16.560 --> 0:15:21.120 at least not initially. But exactly what distinctions they draw 0:15:21.600 --> 0:15:24.160 is hard to predict at this point. You know, depending 0:15:24.160 --> 0:15:27.280 on how they write it. This becomes a question that's 0:15:27.280 --> 0:15:30.320 going to be litigated over and over, isn't it. It's 0:15:30.360 --> 0:15:33.120 it's opening the door. Yes, sure, for the most part, 0:15:33.160 --> 0:15:36.000 claims like this have lost in the lower courts. But 0:15:36.480 --> 0:15:40.560 if the web designer wins in the Supreme Court, even 0:15:40.600 --> 0:15:43.800 in a relatively narrow way, there will then be a 0:15:44.440 --> 0:15:48.600 large number of cases of this sort, posing all sorts 0:15:48.600 --> 0:15:51.160 of difficult questions. Right, one will be about you know, 0:15:51.520 --> 0:15:55.600 our florist like web designers if they're not, what about 0:15:55.800 --> 0:15:59.720 Baker's What about you know, the difference between a bespoke 0:16:00.120 --> 0:16:02.960 website and one off the rack? Right? So there are 0:16:03.320 --> 0:16:06.360 very many questions that will be left open, and as 0:16:06.480 --> 0:16:10.320 alexis to Toakville pointed out in the early nineteenth century 0:16:10.320 --> 0:16:13.320 when he visited America. In America, the open questions become 0:16:13.400 --> 0:16:16.520 legal questions and they're all going to be litigated. So then, 0:16:16.760 --> 0:16:20.520 if this decision comes out as you expected to, what 0:16:20.600 --> 0:16:24.320 does this mean for lgbt Q rights, It's open season 0:16:24.440 --> 0:16:27.360 on lgbt Q rights. I No, I don't think so. 0:16:27.480 --> 0:16:29.680 I think I think it's still going to be true 0:16:30.120 --> 0:16:34.920 that the vast majority of let's say, same sex couples 0:16:34.920 --> 0:16:41.000 looking for wedding services will find them, especially because people 0:16:41.120 --> 0:16:45.920 tend to clump geographically in places that are sympathetic. So 0:16:46.040 --> 0:16:48.840 you know, the people who will be most hurt by 0:16:48.880 --> 0:16:53.480 this are same sex couples and lgbt Q plus individuals 0:16:54.160 --> 0:17:00.200 living outside of major metropolitan areas in places that are 0:17:00.320 --> 0:17:04.240 not sympathetic to their rights, and they will face discrimination there. 0:17:04.680 --> 0:17:09.120 Although the truth is that they might face discrimination they're 0:17:09.160 --> 0:17:15.120 already because the law is hardly perfect at changing people's attitudes. 0:17:15.720 --> 0:17:19.639 This um struck me. The web designer hasn't even tried 0:17:20.160 --> 0:17:25.840 to start wedding website business yet, so why does she 0:17:25.960 --> 0:17:28.679 have standing and it seems like it's one of those 0:17:28.720 --> 0:17:32.920 cases being brought to bring this issue to the court. Yeah, 0:17:32.920 --> 0:17:35.399 that that was a threshold question. It does seem like 0:17:35.400 --> 0:17:38.360 it's sort of made up, both because she hasn't entered 0:17:38.359 --> 0:17:41.199 the business yet. It was done on stipulated facts, just 0:17:41.320 --> 0:17:43.960 as Thomas asked that question at the beginning of the case. 0:17:44.080 --> 0:17:46.320 And there is sort of a technical way around it. 0:17:46.720 --> 0:17:48.280 But it does it does have that kind of air 0:17:48.320 --> 0:17:50.680 of unreality. It seems unreal to me in another way, 0:17:50.720 --> 0:17:52.439 which is, I don't see how she's going to make 0:17:52.440 --> 0:17:55.520 any money on this website anyway. If you just if 0:17:55.560 --> 0:17:59.719 you just go online and google wedding websites, you'll find 0:18:00.040 --> 0:18:03.560 half a dozen services that allow you to create your 0:18:03.560 --> 0:18:07.080 own website in about fifteen minutes for free, and they 0:18:07.119 --> 0:18:10.159 look very professional. Um so, why someone is going to 0:18:10.320 --> 0:18:12.760 go to this person to, you know, to have her 0:18:12.960 --> 0:18:15.600 services for a fee is a mystery to me. Thanks 0:18:15.640 --> 0:18:19.280 so much, Mike. That's Professor Michael Dorff of Cornell Law School. 0:18:20.880 --> 0:18:24.000 The fate of grocery store workers seems to be a 0:18:24.000 --> 0:18:27.560 pivotal factor in the Federal Trade Commission's decision on whether 0:18:27.600 --> 0:18:30.720 to sue to block Kroger's twenty four point six billion 0:18:30.800 --> 0:18:35.200 dollar acquisition of Albertson's. The labor concerns surrounding the merger 0:18:35.200 --> 0:18:38.639 were underscore at a Senate hearing this week, where Kroger's 0:18:38.680 --> 0:18:42.800 CEO made promises not to lay off quote frontline workers, 0:18:43.320 --> 0:18:46.560 joining me as Bloomberg Law reporter Dan Paskin, Dan tell 0:18:46.640 --> 0:18:50.520 us a little about this proposed merger. So Kroger and Albertson's, 0:18:50.560 --> 0:18:53.240 which are two of the largest grocery companies in the US. 0:18:53.359 --> 0:18:56.320 They're the second and fourth largest in the country in 0:18:56.400 --> 0:18:59.520 terms of where Americans buy their groceries. So walmartt is 0:18:59.560 --> 0:19:02.280 also Mozon is competing with them program I was a 0:19:02.280 --> 0:19:05.400 couple of months ago. It's going to buy Albertson's um 0:19:05.720 --> 0:19:10.800 for almost twenty five billion dollars, and regulators and some 0:19:10.880 --> 0:19:13.800 of the public and advocacy groups are concerned that the 0:19:13.840 --> 0:19:17.840 deal could basically concentrate the market for the groceries in 0:19:18.080 --> 0:19:20.640 certain parts of the country where there aren't that many 0:19:20.760 --> 0:19:24.520 stores and where Kroger and Albertson's stores like Safeway and 0:19:24.600 --> 0:19:28.399 Harris Teeter are the only ones in town. Has Albertson's 0:19:28.480 --> 0:19:32.760 promised that stores won't be closed, that they'll be sold. 0:19:32.920 --> 0:19:35.640 Is that part of the deal. Yes, So, as part 0:19:35.680 --> 0:19:39.600 of the proposed deal, Kroger and Albertson's are offering to 0:19:39.640 --> 0:19:43.200 spin off up to about six hundred, six hundred fifty stores, 0:19:43.640 --> 0:19:47.200 probably around three hundred right now, basically to a suage 0:19:47.240 --> 0:19:50.240 concerns that it would concentrate the market, and it's basically 0:19:50.240 --> 0:19:53.840 a move to forestall a Federal Trade Commission challenge to 0:19:53.880 --> 0:19:57.760 the deal. And yes, in a kind of hearing last week, 0:19:58.320 --> 0:20:03.240 the CEO Kroger committed to not close stores, distribution centers, 0:20:03.320 --> 0:20:06.840 or manufacturing facilities as a result of the merger. We've 0:20:06.880 --> 0:20:14.200 seen antitrust regulators focus recently on concerns about labor with 0:20:14.760 --> 0:20:17.919 mergers or acquisition. So tell us what the concern is 0:20:17.960 --> 0:20:20.800 here about labor. Yeah, So the last few years, labor 0:20:20.800 --> 0:20:23.800 has become a much more significant part of murder review 0:20:23.960 --> 0:20:26.840 and anti trust in general. It's not just about product 0:20:26.880 --> 0:20:29.320 markets anymore. It's also about you know, where you and 0:20:29.359 --> 0:20:32.800 I work, and so here there's a concern that if 0:20:32.880 --> 0:20:35.639 you have several stores in a town or a city 0:20:36.000 --> 0:20:40.240 where grocery workers work, and the merger goes through, all 0:20:40.280 --> 0:20:42.840 of the stores could be owned by the new Kroger 0:20:42.880 --> 0:20:47.880 Albertson's company, the merged company, and so workers. Typically when 0:20:47.880 --> 0:20:50.720 when mergers go through, stores are closed, there are layoffs 0:20:50.800 --> 0:20:54.879 because we can save money by laying off like extra workers. 0:20:55.000 --> 0:20:59.120 And so lawmakers and specifically the union that represents over 0:20:59.119 --> 0:21:02.840 a hundred thousand Roger and Albertson's workers, are concerned that 0:21:02.880 --> 0:21:05.520 despite kind of what the CEO said is hearing last week, 0:21:06.040 --> 0:21:08.879 there could still be layoffs. There could still be um 0:21:09.160 --> 0:21:14.320 decreasing circumstances for promotions. Pay could be suppressed because when 0:21:14.320 --> 0:21:17.320 you think about it, um, if I work at at 0:21:17.320 --> 0:21:20.480 a Kroger store, and UM, I want to get a raise, 0:21:20.560 --> 0:21:22.040 maybe the best way for me to get a raised 0:21:22.040 --> 0:21:23.720 isn't keep working at the Kroger store, but it's to 0:21:23.760 --> 0:21:26.760 get hired at an Albigeon store or somewhere else where 0:21:26.760 --> 0:21:28.639 they'll pay me more and go. When you don't have 0:21:28.680 --> 0:21:31.280 that kind of threat of losing your employees to a competitor, 0:21:31.800 --> 0:21:35.320 you're much less incentivized to raise their wages every so 0:21:35.440 --> 0:21:39.159 often give them a raise. At the Senate hearing, the 0:21:39.240 --> 0:21:45.560 Kroger CEO promised to refrain from laying off quote frontline workers. 0:21:45.680 --> 0:21:49.920 So what did he mean by frontline take a good question. Um, 0:21:49.960 --> 0:21:52.159 he was referring to kind of the frontline workers that 0:21:52.160 --> 0:21:54.760 we've talked about all pandemic, and he was pressed on 0:21:54.800 --> 0:21:57.640 it by a couple of different editors to kind of say, 0:21:57.880 --> 0:22:00.720 will you not layoff any workers? And he wouldn't say that, 0:22:01.600 --> 0:22:04.600 which the implication being that kind of more staffing and 0:22:04.640 --> 0:22:07.800 managerial roles could be affected, or people at headquarters. But 0:22:07.880 --> 0:22:10.320 it's hard to say exactly, like we don't know exactly 0:22:10.320 --> 0:22:12.080 what human He didn't offer a kind of a clear 0:22:12.280 --> 0:22:17.199 definition of frontline, so it's it's hard to say. And 0:22:17.240 --> 0:22:20.320 the union, like I said, is concerned that even that 0:22:20.640 --> 0:22:25.680 isn't a guarantee. This focus of the FTC does it 0:22:25.760 --> 0:22:31.639 come from the Biden administration's supportive unions, Yes and no. 0:22:32.240 --> 0:22:35.679 Um in the DJ and the FTC came out with 0:22:35.720 --> 0:22:38.040 new guidance that they would be going after what are 0:22:38.080 --> 0:22:41.920 called noppoach cases and treating them as criminal cases, which 0:22:41.960 --> 0:22:45.960 is basically agreements between employers not to hire each other's workers. 0:22:46.000 --> 0:22:48.840 So there there's evidence that like this overall interest in 0:22:48.960 --> 0:22:52.000 labor goes beyond the Biden administration. That was at the 0:22:52.080 --> 0:22:55.640 end of the Obama administration into the Trump administration when 0:22:55.680 --> 0:22:58.840 that happens. But yes, this kind of specific focus on 0:22:58.920 --> 0:23:04.199 workers is very much under FTC chair Lena Kahn and 0:23:04.680 --> 0:23:07.600 d o J and Star's division as an Attorney General 0:23:07.720 --> 0:23:10.520 Jonathan canter Um, they both said it's a big priority 0:23:10.560 --> 0:23:12.560 for them, and it's very much in line with the 0:23:12.640 --> 0:23:16.719 overall bid administration focus on labor and on competition. So 0:23:16.760 --> 0:23:22.560 the Justice Department was successful recently in blocking Penguin Random 0:23:22.600 --> 0:23:26.199 Houses two point one eight billion dollar acquisition of Simon 0:23:26.280 --> 0:23:29.960 and Schuster, and the focus there was on the authors 0:23:30.000 --> 0:23:35.560 who might lose lucrative contracts and advances because of a deal. 0:23:36.080 --> 0:23:39.880 Is that different from trying to focus on supermarket workers. 0:23:40.600 --> 0:23:43.439 It's actually pretty similar, and that's a really good comparison. So, 0:23:43.480 --> 0:23:46.040 I mean, yes, they are at opposite ends of the 0:23:46.080 --> 0:23:48.720 economic spectrum in terms of income and the kind of 0:23:48.800 --> 0:23:53.119 form of labor, but they're both cases that kind of 0:23:53.240 --> 0:23:56.520 could indicate a focus on labor um. The publisher's case 0:23:56.600 --> 0:23:59.240 is actually the first big murder challenge we've seen, or 0:23:59.280 --> 0:24:01.240 at least the first one in a while that has 0:24:01.280 --> 0:24:04.440 focused primarily on labor. There were other arguments there, but 0:24:04.760 --> 0:24:07.080 d o J really leaned on kind of the effect 0:24:07.119 --> 0:24:10.360 on authors. So yeah, they're they're similar, and there I mean, 0:24:10.600 --> 0:24:13.800 you can't compare them perfectly. That the group of authors 0:24:13.800 --> 0:24:16.280 who make kind of the amount of money and the 0:24:16.359 --> 0:24:19.959 books um that would have been affected by the Penguin 0:24:20.040 --> 0:24:23.920 Random House deal are nowhere in the economic bracket of 0:24:24.000 --> 0:24:27.119 grocery store workers. And grocery store workers can work in 0:24:27.200 --> 0:24:30.720 other places. They're not limited to just banking groceries at Kroger, 0:24:30.840 --> 0:24:33.679 for example. But now there are absolutely comparison and the 0:24:33.720 --> 0:24:38.479