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

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Speaker 2: You know how beautiful the inauguration is. You're down and

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Speaker 2: you're walking up these beautiful stairs to capital, and everything's

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Speaker 2: so beautiful. As I'm walking up, I'll be signing about

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Speaker 2: four or five different documents. I'm not going to wait

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Speaker 2: to get to The.

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Speaker 3: Executive actions are common on day one of a presidency,

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Speaker 3: but Donald Trump is planning an uncommon day one by

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Speaker 3: issuing around one hundred executive orders to cover everything from

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Speaker 3: closing the southern border and ending birthright citizenship to undoing

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Speaker 3: Biden's climate policies and rolling back the rights of transgender Americans.

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Speaker 4: With a stroke of.

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Speaker 5: My pen on day one, We're going to stop the

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Speaker 5: transgender lunacy, and I will sign executive orders to end

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Speaker 5: child sexual mutilation, get transgender out of the military and

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Speaker 5: out of our elementary schools and middle schools.

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Speaker 4: And high school.

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Speaker 3: It will be a first day shock and all campaign.

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Speaker 3: Some of the executive orders may be significant, but others

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Speaker 3: will be merely symbolic, and many will be challenged in

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Speaker 3: court and take months, if not years, of litigation. Joining

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Speaker 3: me is constitutional law expert David super a professor at

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Speaker 3: Georgetown Law, David explain what an executive order is and

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Speaker 3: the power it carries.

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Speaker 1: I'm an executive order is simply a formal directive from

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Speaker 1: the President, as head of the executive Branch, to any

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Speaker 1: or all of his subordinates. It can be something that

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Speaker 1: is called for by an Act of Congress. It can

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Speaker 1: be issued under or the president's constitutional authorities as commander

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Speaker 1: in chief and as head of the executive department of government.

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Speaker 3: Are there areas or things that the president can't do

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Speaker 3: by executive order?

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Speaker 4: Yeah.

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Speaker 1: The president can't do anything that he doesn't have the

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Speaker 1: authority to do, either from the Constitution or congrus. So

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Speaker 1: he can't amend or repeal laws. He can't abridge people's

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Speaker 1: First Amendment or do process freedoms. He can't exercise powers

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Speaker 1: that are not his.

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Speaker 3: Do most executive orders require agencies to perform actions.

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Speaker 1: For the most part, yes, because most laws delegate authority

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Speaker 1: to agencies. So an executive order is the President publicly

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Speaker 1: telling one or more agencies how it wants them to

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Speaker 1: use their delegated powers. Very few matters, not none, but

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Speaker 1: very few are delegated directly to the president.

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Speaker 3: So then when an agency is ordered by executive order

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Speaker 3: to do something, they have to go through the Administrative

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Speaker 3: Procedure Act and the rules process, so it can't be

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Speaker 3: done immediately.

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Speaker 1: No, and the agency can't do more than the law

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Speaker 1: allows it to do. So the president can direct the

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Speaker 1: agency to do six things, but if the agency only

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Speaker 1: has legal authority to do four of them, then that's

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Speaker 1: all that's ever going to happen.

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Speaker 3: So Donald Trump says that he is going to issue

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Speaker 3: one hundred executive orders on day one, and to put

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Speaker 3: that into context, so far as of Monday, President Biden

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Speaker 3: has issued one hundred and fifty five executive orders over

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Speaker 3: four years. Do you think that's to create shock and awe?

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Speaker 1: Well, I think that's the idea. There've been a number

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Speaker 1: of statements from the President and from members of his

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Speaker 1: team suggesting that they intend to have a shock in

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Speaker 1: law entrance.

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Speaker 3: Immigration enforcement is and always has been Trump's number one priority.

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Speaker 3: He has said that on day one he's going to

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Speaker 3: close the US southern border, reinstate his travel bands, and

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Speaker 3: suspend refugee admissions into the country. Can he do those

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Speaker 3: things by executive order?

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Speaker 1: He can do things that sound like that. And if

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Speaker 1: the goal of this is publicity, then perhaps he can

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Speaker 1: get the publicity he is seeking. But there's very extensive

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Speaker 1: laws about the ability to limit travel, about refugees' ability

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Speaker 1: to seek to come to this country, and a number

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Speaker 1: of the things in that area that have been discussed

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Speaker 1: publicly probably illegal.

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Speaker 3: The Supreme Court did uphold his Muslim travel ban, but

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Speaker 3: circumstances have changed since then. So is there any guarantee

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Speaker 3: the Supreme Court would uphold another travel ban.

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Speaker 1: There's no guarantee. That opinion was fairly deferential to the president,

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Speaker 1: but it didn't suggest that the president had a complete

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Speaker 1: blank check. So if the president justifies a travel ban

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Speaker 1: on factually sound and legally premiscipal grounds, it'll be upheld.

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Speaker 1: But remember, the travel ban that got to the Supreme

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Speaker 1: Court was not the first one or even the second

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Speaker 1: one that he issued. His first few travel bans were

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Speaker 1: so blatantly unlawful that they lost in lower courts, and

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Speaker 1: his Justice Department sensibly concluded there was no point in appealing.

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Speaker 3: Are courts generally reluctant to stay or to overturn and

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Speaker 3: executive order? Do they give a lot of deference to

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Speaker 3: the president.

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Speaker 1: I don't know that that's generally true. Executive orders often

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Speaker 1: don't do anything that could be challenged in court. An

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Speaker 1: executive order might, for example, say that agencies should take

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Speaker 1: the interests of veterans into account in implementing various authorities

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Speaker 1: under their control. That's not challengeable because it doesn't to

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Speaker 1: adversely affect anybody. If the President tries to take authority

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Speaker 1: that isn't his, courts feel a need to intervene to

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Speaker 1: preserve the separation of powers.

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Speaker 3: Immigration advocacy groups, environmental groups, and some state ags are

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Speaker 3: sort of gearing up to challenge some of these orders

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Speaker 3: that he's promised, and another of his pledges is to

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Speaker 3: end birthright citizenship on day one. That's something that surely

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Speaker 3: will be challenged.

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Speaker 1: Well, that's an example of an executive order that has

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Speaker 1: no legal authority taking a power that isn't his. That's

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Speaker 1: resolved by Section one of the fourteenth Amendment to the Constitution.

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Speaker 1: So neither the President nor Congress can change that. We

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Speaker 1: could only change that if we amended the constitution.

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Speaker 3: He said, with the stroke of my pen on day one,

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Speaker 3: we're going to stop the transgender lunacy, that he'll sign

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Speaker 3: executive orders to get transgender people out of the military.

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Speaker 3: And out of our elementary schools and middle schools and

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Speaker 3: high schools well. He said, the official policy of the

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Speaker 3: US government will be that there are only two genders,

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Speaker 3: male and female. What can he do to restrict transgender

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Speaker 3: rights as he wants to.

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Speaker 1: The most significant thing that he can do, and something

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Speaker 1: he's already been doing, is feeding the flaims of bigotry,

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Speaker 1: of hostility, and hatred. I don't think there's any question

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Speaker 1: that a significant number of transgender children will be driven

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Speaker 1: into depression and some to suicide as a result of

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Speaker 1: this hateful rhetoric. That's clearly within his power. Controlling what

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Speaker 1: happens in schools that are run by state and local

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Speaker 1: governments is not within his power. What about the military,

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Speaker 1: The president has considerable authority as commander in chief to

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Speaker 1: take steps to make the military more effective for the country.

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Speaker 1: Whether the courts would consider purging people who are serving

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Speaker 1: in the military honorably and have shown loyalty and proficiency

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Speaker 1: is another question.

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Speaker 3: Now, he's also going to do something that is reminiscent

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Speaker 3: of what he did in his last term. He said

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Speaker 3: he's going to sign an executive order directing every federal

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Speaker 3: agency to immediately remove every single burdensome regulation driving up

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Speaker 3: the cost of goods. And he said that for every

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Speaker 3: regulation that a federal agency wants to put into effect,

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Speaker 3: it has to eliminate ten regulations.

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Speaker 1: Well, it makes for good headlines, but it's pretty overtly illegal.

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Speaker 1: Each of the statutes that federal agencies implement have their

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Speaker 1: own legal criteria, and an agency should issue the regulations

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Speaker 1: the statute directs it to issue, and should not issue

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Speaker 1: regulations the statutes don't authorize. It is not a legal

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Speaker 1: or rational basis for deregulating that you needed to regulate

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Speaker 1: something else. He can't do that, And if an agency

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Speaker 1: tries to do repeals of the kind he's talking about,

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Speaker 1: those will surely be challenged and struck down in court.

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Speaker 1: In addition, it's very hard to tell when a regulation

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Speaker 1: is creating a burden and when it is removing a burden.

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Speaker 1: If you allow the airlines to change their schedules at

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Speaker 1: the last moment to lose baggage, you can say you're

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Speaker 1: reducing burdens on them, but you're increasing burdens on me

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Speaker 1: as a traveler.

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Speaker 3: I mean, ken an agency just say we're getting rid

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Speaker 3: of that regulation, or do they have to put something

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Speaker 3: else in its place.

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Speaker 1: It depends entirely on what the underlying statute provides. If

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Speaker 1: the statute says that you will regulate chemicals that are

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Speaker 1: determined to be hazardous to workers, then they can't simply

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Speaker 1: repeal a regulation with such a chemical unless they can

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Speaker 1: show scientific evidence that that chemical isn't hazardous to workers.

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Speaker 1: It's not up to their choice whether to regulate a

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Speaker 1: hazardous chemical once that's been identified under the statute, so

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Speaker 1: they could perhaps change the regulation, but even there they'd

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Speaker 1: need a scientific basis.

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Speaker 3: So out of the seventy seven major rules in his

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Speaker 3: first administration that were challenged, Trump won thirty one point

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Speaker 3: two percent of the time, according to an analysis by

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Speaker 3: NYU Law School's Institute for Policy Integrity. What difference, if any,

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Speaker 3: does it make that in his first term, the Chevron

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Speaker 3: doctrine was in place, But in his second term there

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Speaker 3: is no Chevron doctrine, so that deference to agencies with

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Speaker 3: ambiguous rules is gone. Would that make any difference?

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Speaker 1: That'll mean he'll lose more. The Chevron Doctrine was an

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Speaker 1: enormous help to President Trump. In his first term, a

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Speaker 1: number of very questionable legal rulings were sustained on that basis.

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Speaker 1: He doesn't have that to hide behind anymore, and if

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Speaker 1: his new rules are as badly resented as the ones

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Speaker 1: in his first term, he'll be very lucky to get

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Speaker 1: even close to thirty one percent success.

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Speaker 3: He has talked about day one a lot in the

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Speaker 3: last few months, and he's said, look, I can undo

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Speaker 3: almost everything Biden did through executive order, and on day

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Speaker 3: one much of that will be undone. A president can

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Speaker 3: revoke the executive orders of his predecessor, right, although I

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Speaker 3: don't know how can revoke them all in one fail swoop.

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Speaker 1: The president generally can revoke the predecessor's executive orders, and

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Speaker 1: he can sign a new executive order with a list

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Speaker 1: of fire executive orders that are ascended. If he tries

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Speaker 1: that with too broad a brush, he'll probably end up

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Speaker 1: doing some things that are embarrassing, repealing recognitions of this

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Speaker 1: or that agency or state or individual for heroic or

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Speaker 1: public minded service. But he can repeal just about any

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Speaker 1: executive order he wants to, unless there is some statute

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Speaker 1: that requires that executive order to stay in place, which

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Speaker 1: they're rarely is.

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Speaker 3: We assume he's going to rely on executive orders a

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Speaker 3: lot has there been another president that relied on executive

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Speaker 3: orders so much?

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Speaker 1: No, there have been presidents who've issued very important executive orders.

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Speaker 1: Certainly President Reagan did, President Clinton did, and they did

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Speaker 1: change the government with those, but they were targeted at

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Speaker 1: particular things that were within their authority and particular things

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Speaker 1: that the government could actually do.

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Speaker 3: Congress could always pass a law that refutes the executive order.

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Speaker 3: But with the Congress the way it is, both houses

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Speaker 3: controlled by Republicans, does it seem like there's going to

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Speaker 3: be any sort of restraint on Trump.

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Speaker 1: Well, there's a great deal of restraint from laws that

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Speaker 1: are already on the books in areas where he has

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Speaker 1: a great deal of discretion. I agree that this Congress

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Speaker 1: is unlikely to narrow that, but in many he does

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Speaker 1: not have broad discretion, and we don't need new laws

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Speaker 1: to impose restraints because we have existing ones.

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Speaker 3: Do you think his aides learned by their experience with

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Speaker 3: executive orders the first time around?

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Speaker 1: I don't know. There are certainly some people that are

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Speaker 1: coming back. Mister Vote is going to resume his seat

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Speaker 1: as director of OMB if he's confirmed by the Senate.

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Speaker 1: But a great many of them are different, and I

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Speaker 1: do see evidence of repeating mistakes that were made in

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Speaker 1: the first Trump administration.

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Speaker 3: So I see a lot of litigation ahead in the

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Speaker 3: next four years. Thanks so much, David. That's Professor David

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Speaker 3: Super of Georgetown Law coming up next on the Bloomberg

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Speaker 3: Law Show. Supreme Court Justice is grappled today with a

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Speaker 3: first amendment challenge to a Texas law requiring age verification

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Speaker 3: to access porn sites.

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Speaker 6: Sable, of course, was thirty five years ago. In that period,

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Speaker 6: the technological access to pornography obviously has exploded, right. I mean,

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Speaker 6: it's very difficult for fifteen year olds whatever to get

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Speaker 6: access to the type of things that is available with

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Speaker 6: the push of a button today. And the nature of

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Speaker 6: the pornography I think has also changed in those thirty

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Speaker 6: five years.

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Speaker 3: Chief Justice John Roberts said the availability of pornography has

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Speaker 3: exploded with technology. Since the Court lasts grapple with restrictions

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Speaker 3: on obscene material, and it may require the Justices to

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Speaker 3: rethink the standard of scrutiny. The Court is deciding a

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Speaker 3: first amendment challenge to a Texas law that requires porn

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Speaker 3: sites to verify the age of users. An industry trade

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Speaker 3: group contends the law violates the privacy rights of adults,

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Speaker 3: and the Fifth Circuit Court of Appeals should have looked

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Speaker 3: at the law under a strict scrutiny standard that would

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Speaker 3: require Texas to have a compelling interest it can achieve

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Speaker 3: in the least restrictive way. However, many of the justices

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Speaker 3: seem skeptical that other less restrictive alternatives like content filtering,

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Speaker 3: would protect kids. Justice Amy Cony Barrett, who has seven children,

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Speaker 3: said she had first hand experience.

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Speaker 7: I mean, kids can get online porn through gaming systems, tablets, phones, computers.

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Speaker 7: Let me just say that content filtering for all those

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Speaker 7: different devices, I can say from personal experience, is difficult

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Speaker 7: to keep up with. So and I think that the

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Speaker 7: explosion of addiction in to online porn has shown that

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Speaker 7: content filtering isn't working.

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Speaker 3: And there's always the problem of parents and technology, as

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Speaker 3: Justice Samuel A. Leito pointed out to the attorney for

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Speaker 3: the industry trade group Derek Schaffer.

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Speaker 1: Mister Schaffer, you know a lot of parents who are

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Speaker 1: more tech savvy than their fifteen year old children. Oh,

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Speaker 1: Justice Leto, it's a fair question, and I don't know that.

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Speaker 1: I think kids may be ahead of parents, but that's

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Speaker 1: a problem with this law. It's not solving for the fact.

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Speaker 4: Now it's a problem with filtering.

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Speaker 3: Isn't it joining me? Is First Amendment expert Eugene Volk,

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Speaker 3: a professor at UCLA Law School, Eugene Justice Sonia so

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Speaker 3: to mayor, So, the issue is the level of scrutiny

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Speaker 3: to be applied to the law. Is that the real

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Speaker 3: issue in the case.

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Speaker 4: It is an issue. But if in some respects a

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Speaker 4: matter of legal labeling, there's a deeper issue behind. If

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Speaker 4: you just step back, we can think of two kinds

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Speaker 4: of speech. One is speech that holds within a First

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Speaker 4: Amendment exception. Could be true threats of criminal conduct, could

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Speaker 4: be incitement to christ, could be certain kinds of libel.

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Speaker 4: It could be obscenity in the sense of hardcore pornography

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Speaker 4: that is illegal for everybody. That kind of speech hits

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Speaker 4: within a First Tomment exception. It's constitutionally unprotected once you

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Speaker 4: apply the right test to determine whether it's fits into

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Speaker 4: one of those categories. At that point, restrictions on that

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Speaker 4: speech I oversimplify here, though, might be seen as justifiable

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Speaker 4: so long as there's a so called rational basis for them,

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Speaker 4: which is to say, they'll be upheld again once the

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Speaker 4: court concludes the speech is unprotected. So if there's a

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Speaker 4: law that in truth threats of illegal conduct the government

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Speaker 4: doesn't happen, then show that it's narrowly tailored to compelling interest.

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Speaker 4: There is an alternative to the law.

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Speaker 2: What have you.

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Speaker 4: The law is just constitutional wants it's funds to be

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Speaker 4: limited to the truth threats. Second category of speech is

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Speaker 4: all sorts of other speech, political advocacies, scientific speech, a

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Speaker 4: discussion about personal matters that is protected. If the government

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Speaker 4: wants to restrict that based on its content, it really

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Speaker 4: does have to show there's a compelling government interest. The

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Speaker 4: law is the least restrictive way of sin that interest.

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Speaker 4: It's a very hard.

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Speaker 1: Stenter the show.

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Speaker 4: But there is this third category that the Court has

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Speaker 4: recognized over the decades, and that is speech that is

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Speaker 4: unprotected for minors, so called harmful to minors or obscenis

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Speaker 4: to minors. Basically pornographic for minors or let's say unduly

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Speaker 4: pornographic therefore unacceptable to be distributed to minors, but at

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Speaker 4: the same time is constitutionally protected for adults. A lot

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Speaker 4: of pornography is that way. It's basically protected for adults.

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Speaker 4: But if you're trying to distribute it to minors, maybe

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Speaker 4: even seventeen year old miners, but certainly younger miners, it

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Speaker 4: is constitutionally unprotected. The question is what happens when there

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Speaker 4: are laws that limit speech within this kind of weird

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Speaker 4: intermediate category and at the same time those laws pretty

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Speaker 4: much invariably also burden speech that is a at adults

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Speaker 4: or there will be received by adults, because there needs

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Speaker 4: to be a way of sorting the miners for adults,

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Speaker 4: and those ways might interfere in some measure with adults.

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Speaker 4: So the question is how you deal with that. And

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Speaker 4: the court talked about various formulations you might think of

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Speaker 4: as a rational basis test for those kinds of restrictions,

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Speaker 4: or a strict scrutiny test, or some justice suggested kind

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Speaker 4: of a and the State of Texas suggests kind of

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Speaker 4: a burden based test, asking how much the law actually

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Speaker 4: does interfere with speech to adults. So those are the

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Speaker 4: legal formulations for are inmplating. The core question, though, is

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Speaker 4: how do you reconcile the permissibility of trying to shield

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Speaker 4: miners with the fact that any such restriction will impose

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Speaker 4: some burdens on adults and h screening will in particular

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Speaker 4: interfere in some measure with adults privacy because it might

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Speaker 4: require them to identify themselves in various ways. Those are

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Speaker 4: the questions that the corp was really dealing with them.

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Speaker 3: The Fifth Circuit upheld the Texas law by relying on

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Speaker 3: a nineteen sixties case about a New York bookseller verifying

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Speaker 3: the age of customers before selling adult material. Was that

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Speaker 3: the case that they should have been relying on.

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Speaker 4: So the problem is that the court has two precedents

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Speaker 4: that are pretty close to on point and the point

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Speaker 4: in pretty different directions. So in nineteen sixty eight, the

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Speaker 4: Supreme Court upheld in a case called Ginenberg versus New York,

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Speaker 4: upheld a law that basically said, it's the illegal to

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Speaker 4: sell certain pornographic materials that are protected for adults. It's

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Speaker 4: illegal to sell them to minors, and illegal to do

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Speaker 4: that if you know the person owned as a minor

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Speaker 4: or reasonably should know the person as a minor, And

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Speaker 4: one way of determining the law that whether he's going

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Speaker 4: as a minor is by carting the person by asking

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Speaker 4: to see an ID. And on the other hand, if

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Speaker 4: somebody comes in and they looked kind of borderline and

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Speaker 4: you don't card them, well, then you could be criminally

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Speaker 4: punished because you reasonably should have known that the person

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Speaker 4: was a miners. So people who look borderline, the law

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Speaker 4: would basically require them to show an ID.

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Speaker 1: As a practical man.

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Speaker 4: But then in ashcarf. The ACLU two, a two thousand

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Speaker 4: and four case, the Supreme Court struck down a law

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Speaker 4: that aimed at shielding miners on the Internet from this

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Speaker 4: kind of harmful to minors of seen as to minors

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Speaker 4: of material, and it said, well, on the Internet, there

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Speaker 4: are other alternatives that you could use that avoid the

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Speaker 4: burden on adults. For example filtering, so having stopped or

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Speaker 4: running on the computer that filters out certain pronographic websites

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Speaker 4: in the discretion of the computer's owner, who presumably would

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Speaker 4: be the parent. So those precedents point in opposite directions. Now,

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Speaker 4: in some sense, and probably in a substantial sense, Ashcart

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Speaker 4: the ACLU two seems more on points because it is

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Speaker 4: actually factually very similar to also involved Internet speech. On

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Speaker 4: the other hand, the court there was really quite tentative

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Speaker 4: and it said, well, a lot depends on fast changing technology.

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Speaker 4: Justice Brier had a distending opinion where he said, look,

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Speaker 4: filtering isn't really that effective, and the government should be

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Speaker 4: able to provide extra protection beyond what is provided by filtering.

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Speaker 4: And a lot of justices of today's arguments were pretty

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Speaker 4: skeptical about filtering. Their view was that it's like after

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Speaker 4: twenty extra years of experience, in twenty years extra years

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Speaker 4: of technological development. Their view was, you know, filtering when

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Speaker 4: every child has a smartphone and ex friends who have

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Speaker 4: smartphones and such, just isn't going to do much. So

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Speaker 4: that's why some of the justices at least seemed a

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Speaker 4: lot more open to applying, to applying Giinsburg and suggesting that, look,

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Speaker 4: this is just the online analogue of parting people as

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Speaker 4: was used with porn stores back of the day. I

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Speaker 4: suppose porn stores to use them, how if their business

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Speaker 4: facing competition from the internet.

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Speaker 3: Justice score such at one point asked whether they should

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Speaker 3: try to keep the same principles for online sites as

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Speaker 3: for brick and mortar stores.

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Speaker 4: That's right, that's right, and this is of course a

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Speaker 4: big part of the state's argument. Look, it's okay to

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Speaker 4: require ID at bricks and mortar stores. The First Amendment

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Speaker 4: applies regardless of the medium generally speaking. On the other hand,

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Speaker 4: the challengers argument is twofold. First of all, they say

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Speaker 4: what should happen is the same test should be applied

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Speaker 4: to both. And they say the tests should be strict

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Speaker 4: scrutiny because of the burden that the law imposes on

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Speaker 4: adult Now, the test may play out differently for different

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Speaker 4: kinds of stores. In the bricks and mortar world, there's

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Speaker 4: no filtering, right, parents can't put glasses on their children

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Speaker 4: that keeps them from being porn in the bricks and

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Speaker 4: mortar stores. But on the Internet there is still print.

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Speaker 4: So a law that may be the least restrictive alternative

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Speaker 4: requiring krding, maybe the least restrict of alternative is a

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Speaker 4: practical matter for bookstores and movie theaters might not be

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Speaker 4: the least restrict of alternative on the Internet. The other

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Speaker 4: thing that the challengers say is that on the Internet,

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Speaker 4: checking ID is actually more burdensome on adults because we

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Speaker 4: know on the Internet you put in some information, potentially

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Speaker 4: it's now available, indefinitely distributable, indefinitely hackable, and as a result,

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Speaker 4: people are going to be much more worried about giving

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Speaker 4: their identifying information in a way that ties them to

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Speaker 4: internet porn than in the old days, where look, you

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Speaker 4: show the ide, nobody's going to write down your name,

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Speaker 4: or your driver's license, member or what have you. Most

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Speaker 4: you might worry that the bookstore clerk is going to

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Speaker 4: remember and gossip to someone about it, but there will

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Speaker 4: be substantial professional reasons for so. The argument that these

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Speaker 4: challengers are making is, yes, let's apply the same standards.

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Speaker 4: It's just those standards end up playing out differently as

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Speaker 4: the different technologies because the facts are different to the

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Speaker 4: different technologies.

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Speaker 3: Coming up next on the Bloomberg Law Show, I'll continue

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Speaker 3: this conversation with Professor Eugene of UCLA Law School. Does

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Speaker 3: the court look like it might send the case back

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Speaker 3: to the Fifth Circuit? And what about the other eighteen

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Speaker 3: states that have passed age verification laws since the beginning

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Speaker 3: of twenty twenty three. Texas is one of nineteen states

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Speaker 3: with laws aimed at blocking young children and teenagers from

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Speaker 3: viewing pornography online by requiring age verification. I've been talking

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Speaker 3: to Professor Eugene Volok of UCLA Law School. Did it

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Speaker 3: seem to you that most of the justices were leaning

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Speaker 3: toward the rational basis test rather than strict scrutiny.

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Speaker 4: Well, so I say that I think quite a few

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Speaker 4: of the justices were open to strict scrutiny in part

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Speaker 4: because Ashbrot the ACLU two did apply that. And then

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Speaker 4: there are other cases not quite a square of the

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Speaker 4: out point, but dealing with technologically distributed pornography and electronically

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Speaker 4: distributed pornography, which also applied to strict scrutiny. The real

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Speaker 4: question is what does that end up meaning? Because even

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Speaker 4: the challenger said, well, in this situation, some laws, some

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Speaker 4: regulations might pass strict screwed. It's just that the particular

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Speaker 4: Texas law doesn't, partly for technical reasons having to do

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Speaker 4: the law, and partly because filtering is the less restrictive

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Speaker 4: of one thing. For example, that the challenger said, it's

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Speaker 4: filtering is actually in some respects more effective because filtering

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Speaker 4: can deal with foreign point sites. Was the Texas law

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Speaker 4: would have no effect on foreign porn sites if the

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Speaker 4: foreign company has no access in Texas and olympolaes in Texas.

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Speaker 4: So the challengers say this particular though would be struck down.

441
00:28:01,720 --> 00:28:04,600
Speaker 4: I think majority of the court would say at least

442
00:28:04,600 --> 00:28:08,399
Speaker 4: certain laws should be upheld. Majority of the court also

443
00:28:08,440 --> 00:28:12,480
Speaker 4: seem to be open to some kind of online age verification.

444
00:28:12,680 --> 00:28:15,919
Speaker 4: So I think their view was states probably have the

445
00:28:16,000 --> 00:28:20,439
Speaker 4: authority to require some kinds of age verification as a

446
00:28:20,560 --> 00:28:25,520
Speaker 4: backstop to parent level filtering and device level filtering. That

447
00:28:25,800 --> 00:28:28,240
Speaker 4: they could try to wear belt and suspenders in this

448
00:28:28,359 --> 00:28:32,159
Speaker 4: kind of situation in order to provide more effectiveness of

449
00:28:32,480 --> 00:28:38,000
Speaker 4: shielding biners, but maybe not this particular law. Maybe a

450
00:28:38,080 --> 00:28:42,560
Speaker 4: law would have to provide more privately protective age verification options.

451
00:28:42,600 --> 00:28:46,960
Speaker 4: For example. There's also sounded like some sympathy amongst some

452
00:28:47,160 --> 00:28:49,840
Speaker 4: justices to kind of punt a little bit to say

453
00:28:49,840 --> 00:28:52,560
Speaker 4: the right standard districts could me, and we're going to

454
00:28:52,600 --> 00:28:55,000
Speaker 4: send it back to the Fifth Circuit, to the Federal

455
00:28:55,040 --> 00:28:59,040
Speaker 4: appellate Court. We're that uphels the law to reconsider the

456
00:28:59,080 --> 00:29:02,600
Speaker 4: issue and to see whether the district court was right

457
00:29:02,680 --> 00:29:06,080
Speaker 4: in saying that, well, the law failed strict scrutiny, or

458
00:29:06,160 --> 00:29:09,600
Speaker 4: maybe this di Circus might say no, the law actually

459
00:29:09,640 --> 00:29:13,080
Speaker 4: passes strict scrutiny, or do something in between. So that

460
00:29:13,120 --> 00:29:16,920
Speaker 4: would only require the court to choose the strict scrutiny

461
00:29:16,920 --> 00:29:21,560
Speaker 4: approach versus the rational basis approach and then leave application

462
00:29:21,800 --> 00:29:25,200
Speaker 4: of the standard to lower courts. Justices sometimes like to

463
00:29:25,240 --> 00:29:28,360
Speaker 4: do that, especially when the case looks really complicated and

464
00:29:28,480 --> 00:29:30,280
Speaker 4: really factly as well.

465
00:29:30,760 --> 00:29:33,360
Speaker 3: So you think that it's most likely that they're going

466
00:29:33,440 --> 00:29:35,680
Speaker 3: to remand this to the Fifth Circuit.

467
00:29:37,520 --> 00:29:41,240
Speaker 4: Oh, I never make predictions about the future, and especially

468
00:29:41,280 --> 00:29:44,760
Speaker 4: about the future on the court. Sometimes I make predictions.

469
00:29:44,760 --> 00:29:48,720
Speaker 4: But here the argument, I don't think kind of gave

470
00:29:48,760 --> 00:29:52,920
Speaker 4: a clear answer as a bad question. Some justices were

471
00:29:52,920 --> 00:29:56,040
Speaker 4: open to that. You know, if I had to bet,

472
00:29:56,080 --> 00:29:59,320
Speaker 4: I would probably say that they would say strict scrutiny applies.

473
00:30:00,000 --> 00:30:03,560
Speaker 4: But whether they would just say that and leave it

474
00:30:03,680 --> 00:30:05,960
Speaker 4: entirely to the Fifth Circuit of provide more guidance to

475
00:30:06,000 --> 00:30:08,320
Speaker 4: the Fifth Circuit, that is a harder question.

476
00:30:09,120 --> 00:30:13,400
Speaker 3: And the Fifth Circuit applied rational basis.

477
00:30:13,000 --> 00:30:16,880
Speaker 4: So applied rational basis. But in practice, here's what it means.

478
00:30:16,920 --> 00:30:20,240
Speaker 4: It's said one thought. We see that the law targets

479
00:30:20,240 --> 00:30:26,000
Speaker 4: only obscenis to minors materials and is targeted as shielding

480
00:30:26,040 --> 00:30:30,120
Speaker 4: material for miners. At that point, the state has very

481
00:30:30,120 --> 00:30:33,880
Speaker 4: broad authorities to decide how to shield miners. It doesn't

482
00:30:33,920 --> 00:30:36,320
Speaker 4: have to show that it's using the least restrictive means

483
00:30:36,560 --> 00:30:39,760
Speaker 4: doesn't have to worry too much about burden non adults.

484
00:30:40,440 --> 00:30:42,800
Speaker 4: It's okay. So it's not like rational basis in the

485
00:30:42,840 --> 00:30:46,440
Speaker 4: sense any speech restriction goes, or any speech restriction aimed

486
00:30:46,440 --> 00:30:50,320
Speaker 4: that sexually the material goes. The state has to limit

487
00:30:50,400 --> 00:30:53,520
Speaker 4: itself to this material that is harmful to minors or

488
00:30:53,520 --> 00:30:56,880
Speaker 4: obscenis to minors. But once it limits itself to that,

489
00:30:57,440 --> 00:31:01,480
Speaker 4: then the Fifth Circuits said, there's no reason of the

490
00:31:01,880 --> 00:31:07,680
Speaker 4: ex particularly demanding about looking at the particular means that

491
00:31:07,760 --> 00:31:11,240
Speaker 4: the state is using in order to enforce that ginsbergby

492
00:31:11,360 --> 00:31:15,240
Speaker 4: New York obscenist to my understand, so it looks to

493
00:31:15,320 --> 00:31:18,120
Speaker 4: me like probably most justices are going to say, no,

494
00:31:18,800 --> 00:31:21,520
Speaker 4: that's not the standard we've used for the Internet in

495
00:31:21,600 --> 00:31:24,600
Speaker 4: cases like Ashcok the acteal New too. Well, whether they

496
00:31:24,640 --> 00:31:27,440
Speaker 4: will say much more than that will say much more

497
00:31:27,480 --> 00:31:30,160
Speaker 4: about what it takes to actually uphold the law under

498
00:31:30,160 --> 00:31:33,760
Speaker 4: strict scrutiny. That is the harder, harder thing to predict.

499
00:31:34,120 --> 00:31:38,600
Speaker 3: Texas is one of nineteen states that have these age

500
00:31:38,720 --> 00:31:42,920
Speaker 3: verification laws. So how would this apply to the other

501
00:31:42,960 --> 00:31:45,160
Speaker 3: states or would it be fact based?

502
00:31:46,440 --> 00:31:48,920
Speaker 4: Well, it would be both. If the court says, well,

503
00:31:49,160 --> 00:31:53,400
Speaker 4: the right standard is, even if you're aiming at shielding children,

504
00:31:53,800 --> 00:31:55,880
Speaker 4: you've got to show that this is the means that

505
00:31:56,000 --> 00:31:59,760
Speaker 4: is least restrictive of adult access. That strict scrutiny standard

506
00:32:00,000 --> 00:32:02,240
Speaker 4: fly to all stacks. On the other end of the

507
00:32:02,240 --> 00:32:06,040
Speaker 4: court says nope, once you're shielding children at least unless

508
00:32:06,560 --> 00:32:09,640
Speaker 4: the burden and adults is extraordinarily.

509
00:32:08,800 --> 00:32:11,760
Speaker 1: High, well than in that case, they're going uphold it.

510
00:32:11,800 --> 00:32:14,040
Speaker 1: That too would apply to other sticks. On the other hand,

511
00:32:14,120 --> 00:32:17,880
Speaker 1: are particular features of this particular law. So for example,

512
00:32:17,960 --> 00:32:21,800
Speaker 1: this law, the state says, well, we are protecting privacy

513
00:32:22,000 --> 00:32:26,440
Speaker 1: and diminishing the chilling effect on adults by essentially for

514
00:32:26,720 --> 00:32:31,000
Speaker 1: visiting age verification or sites to do age verification from.

515
00:32:30,840 --> 00:32:34,240
Speaker 4: Retaining the data. But the challengers say nothing in the

516
00:32:34,320 --> 00:32:38,360
Speaker 4: law says that you can't give away the data or

517
00:32:38,480 --> 00:32:40,760
Speaker 4: sell the data. So long as you don't retain that

518
00:32:40,840 --> 00:32:44,360
Speaker 4: you can sell it to someone else. Well, that's a

519
00:32:44,440 --> 00:32:47,360
Speaker 4: feature that I don't know how many AVAIL states have,

520
00:32:47,520 --> 00:32:50,320
Speaker 4: but I imagine some of them don't have this feature. So

521
00:32:50,480 --> 00:32:52,880
Speaker 4: the court focuses on that and says, well, that makes

522
00:32:52,880 --> 00:32:56,880
Speaker 4: this law constitutional because either sales trips food new or

523
00:32:56,920 --> 00:33:00,520
Speaker 4: because it's a too grave a burden on adult access. Well,

524
00:33:00,560 --> 00:33:03,400
Speaker 4: that might have very little event on other state laws

525
00:33:03,400 --> 00:33:05,480
Speaker 4: that don't have this peculiar feature.

526
00:33:05,680 --> 00:33:11,280
Speaker 3: When they were discussing less restrictive alternatives besides content filtering, which,

527
00:33:11,800 --> 00:33:14,080
Speaker 3: as you mentioned a lot of the justices I think

528
00:33:14,120 --> 00:33:17,640
Speaker 3: Amy Cony Barrett said from our own experience, it doesn't work.

529
00:33:18,160 --> 00:33:21,920
Speaker 3: What other ways are there to do this? Are there

530
00:33:21,960 --> 00:33:26,920
Speaker 3: other technical ways that the justices might not be familiar.

531
00:33:26,400 --> 00:33:30,480
Speaker 4: With, So I'm not sure how unfamiliar they are with them,

532
00:33:30,560 --> 00:33:34,600
Speaker 4: but here are a few that that came up. What

533
00:33:34,840 --> 00:33:40,080
Speaker 4: is the possibility of requiring age verification but using tools

534
00:33:40,080 --> 00:33:45,120
Speaker 4: that are especially privacy protective. So the possibility, for example,

535
00:33:45,120 --> 00:33:48,920
Speaker 4: of using some sort of biometric evaluations to kind of

536
00:33:49,000 --> 00:33:53,600
Speaker 4: look at the person's face, and then without keeping that data,

537
00:33:53,680 --> 00:33:56,840
Speaker 4: it could just say well, this person looks old or

538
00:33:56,880 --> 00:33:59,280
Speaker 4: looks old enough. Of course, there there'll be some people

539
00:33:59,280 --> 00:34:02,120
Speaker 4: who are borderlined, but at least for most people, it

540
00:34:02,160 --> 00:34:05,080
Speaker 4: would provide less of a burden on privacy than, for example,

541
00:34:05,200 --> 00:34:08,359
Speaker 4: requiring someone to show a government ID, or there's talk

542
00:34:08,440 --> 00:34:11,120
Speaker 4: of possibly looking in people's hands altho, in the question

543
00:34:11,239 --> 00:34:14,319
Speaker 4: is how do you avoid people thinking that so there

544
00:34:14,640 --> 00:34:18,960
Speaker 4: parently are sites that at least build themselves as providing

545
00:34:19,120 --> 00:34:23,800
Speaker 4: really secure and privacy protective age verification, and one question

546
00:34:23,960 --> 00:34:26,839
Speaker 4: was whether using those sites would comply with Texas law.

547
00:34:27,200 --> 00:34:30,399
Speaker 4: Maybe Texas law doesn't allow those sites to be used,

548
00:34:30,400 --> 00:34:34,640
Speaker 4: but maybe less restrictive law would. Another argument that the

549
00:34:34,760 --> 00:34:38,840
Speaker 4: challenger said is well Texas could require that devices sold

550
00:34:39,000 --> 00:34:43,000
Speaker 4: in Texas have built in filtering as an option to

551
00:34:43,080 --> 00:34:46,000
Speaker 4: be sure as an option to be used by the parents,

552
00:34:46,239 --> 00:34:48,480
Speaker 4: So all the parents would have to do for free.

553
00:34:48,560 --> 00:34:52,040
Speaker 4: They wouldn't have to configure some new software downloaded by

554
00:34:52,120 --> 00:34:54,719
Speaker 4: its figuring how to operate. All that have to do

555
00:34:54,760 --> 00:34:57,800
Speaker 4: is that have to select the parental control options. So

556
00:34:57,960 --> 00:35:00,239
Speaker 4: at that point filtering would be turned on and then

557
00:35:00,239 --> 00:35:02,839
Speaker 4: they could tune it if they wanted to their preferences.

558
00:35:03,040 --> 00:35:06,960
Speaker 4: That the challengers said would make for a much lesser

559
00:35:07,040 --> 00:35:10,000
Speaker 4: burden on adults, because if an adult wants to act

560
00:35:10,040 --> 00:35:12,239
Speaker 4: the form that they could just buy it or have

561
00:35:12,320 --> 00:35:16,280
Speaker 4: their device which is set up without the filtering, whereas

562
00:35:16,360 --> 00:35:18,600
Speaker 4: if a parent wants to shield the child, then the

563
00:35:18,680 --> 00:35:21,960
Speaker 4: parent can just set the right setting. On the other hand,

564
00:35:22,840 --> 00:35:26,080
Speaker 4: some justices might be skeptical about that because that might

565
00:35:26,080 --> 00:35:30,000
Speaker 4: be seen as less effective because it doesn't deal with

566
00:35:30,120 --> 00:35:33,400
Speaker 4: legacy device. There's lots of computers and phones people as

567
00:35:33,120 --> 00:35:35,560
Speaker 4: that that would have been before the date before such

568
00:35:35,560 --> 00:35:38,840
Speaker 4: a mandate. Also doesn't deal with people accessing things on

569
00:35:39,040 --> 00:35:41,920
Speaker 4: their friends the computers in the line. So those are

570
00:35:41,960 --> 00:35:44,600
Speaker 4: the kinds of things that I think the justices might

571
00:35:44,719 --> 00:35:48,240
Speaker 4: very well want to leave to lower courts to decide,

572
00:35:48,320 --> 00:35:52,759
Speaker 4: not because it's technologically so sophisticated, but just because there's

573
00:35:52,800 --> 00:35:55,600
Speaker 4: going to be a lot of factual dispute there and

574
00:35:56,000 --> 00:35:58,600
Speaker 4: often it may make sense for lower courts to look

575
00:35:58,640 --> 00:35:59,640
Speaker 4: at that more closely.

576
00:36:00,000 --> 00:36:02,439
Speaker 3: It's a pleasure to have you on, Eugene, thanks so much.

577
00:36:02,880 --> 00:36:07,799
Speaker 3: That's Professor Eugene Vollik of UCLA Law School. And that's

578
00:36:07,840 --> 00:36:10,440
Speaker 3: it for this edition of the Bloomberg Law Show. Remember

579
00:36:10,480 --> 00:36:12,600
Speaker 3: you can always get the latest legal news on our

580
00:36:12,600 --> 00:36:16,759
Speaker 3: Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify,

581
00:36:16,960 --> 00:36:22,000
Speaker 3: and at www dot Bloomberg dot com, slash podcast Slash Law,

582
00:36:22,400 --> 00:36:24,960
Speaker 3: and remember to tune into The Bloomberg Law Show every

583
00:36:25,040 --> 00:36:28,920
Speaker 3: weeknight at ten pm Wall Street Time. I'm June Grosso,

584
00:36:29,040 --> 00:36:30,680
Speaker 3: and you're listening to Bloomberg