WEBVTT - Alito Refuses to Recuse & NRA Wins Free Speech Case 0:00:03.200 --> 0:00:08.719 This is Bloomberg Law with June Grosso from Bloomberg Radio. 0:00:09.440 --> 0:00:13.200 During the Supreme Court arguments over whether former President Donald 0:00:13.240 --> 0:00:17.239 Trump is immune from criminal charges for illegally trying to 0:00:17.320 --> 0:00:21.440 overturn the results of the twenty twenty election, Justice Samuel 0:00:21.440 --> 0:00:25.400 Alito stood out from the other justices with his repeated 0:00:25.480 --> 0:00:29.320 concerns about opening presidents up to criminal prosecution. 0:00:29.880 --> 0:00:32.159 Today, I understand you to say, well, you know, if 0:00:32.159 --> 0:00:34.440 he makes a mistake, he makes a mistake, he subject 0:00:34.760 --> 0:00:37.599 to the criminal laws just like anybody else. You don't 0:00:37.640 --> 0:00:42.240 think he's in a special, a peculiarly precarious. 0:00:41.520 --> 0:00:47.479 Position, but that the president may be criminally prosecuted by 0:00:47.520 --> 0:00:53.160 a bitter political opponent. Will that not lead us into 0:00:53.760 --> 0:00:58.760 a cycle that destabilizes the functioning of our country as. 0:00:58.600 --> 0:01:03.040 A Democracytional Democrats have asked Aledo to recuse himself from 0:01:03.080 --> 0:01:06.280 that case and another case that could have implications for 0:01:06.319 --> 0:01:10.280 the Trump prosecution, not because of the questioning, but because 0:01:10.360 --> 0:01:14.520 flags flown outside Aledo's homes are associated with the pro 0:01:14.680 --> 0:01:18.600 Trump mob that attacked the capital on January sixth, creating 0:01:18.640 --> 0:01:23.680 an appearance of impropriety for the conservative justice. An upside 0:01:23.680 --> 0:01:27.280 down American flag associated with the Stop the Steel Movement 0:01:27.680 --> 0:01:31.240 was flown outside Aledo's Virginia home, and an Appeal to 0:01:31.319 --> 0:01:35.680 Heaven flag, a symbol of Christian nationalism, was flown outside 0:01:35.720 --> 0:01:40.080 Aledo's beach residence in New Jersey. Similar flags were carried 0:01:40.120 --> 0:01:44.600 by the January sixth rioters, but Alito has flatly refused 0:01:44.640 --> 0:01:48.160 to recuse himself from the cases, blaming his wife for 0:01:48.240 --> 0:01:52.640 the flag flying. What's more, the Chief Justice has said 0:01:52.840 --> 0:01:56.400 he's not getting involved. It's a pattern we've seen before 0:01:56.440 --> 0:01:59.880 with Aledo, who has a history of stirring up political contra. 0:02:01.240 --> 0:02:04.680 Joining me is an expert in constitutional law, David Super, 0:02:04.800 --> 0:02:08.919 a professor at Georgetown Law. Justice Alito says there was 0:02:08.960 --> 0:02:12.040 an upside down flag flying at his house for days, 0:02:12.600 --> 0:02:14.680 and he was not aware of it until it was 0:02:14.760 --> 0:02:17.480 called his attention, and then he tried to get his 0:02:17.520 --> 0:02:20.280 wife to take it down, but she refused for days. 0:02:20.800 --> 0:02:23.040 Does that pass the Laft test? 0:02:23.560 --> 0:02:26.680 Not for me, I don't think for most people. It's 0:02:26.720 --> 0:02:30.320 his house. We are responsible for what's on display in 0:02:30.400 --> 0:02:35.480 our houses, and if it is his house, as co 0:02:35.560 --> 0:02:38.120 owner with her, he has every right to take it down. 0:02:38.560 --> 0:02:40.360 She probably then would have a right to put it 0:02:40.400 --> 0:02:43.600 back up, but he doesn't need her approval to take 0:02:43.639 --> 0:02:45.640 it down as a co owner of the house. 0:02:46.000 --> 0:02:50.359 What was really odd was he went into detail about 0:02:50.360 --> 0:02:53.680 the ownership of the two houses. I just thought that 0:02:53.680 --> 0:02:55.960 that was unnecessary and odd. 0:02:56.840 --> 0:03:00.840 It is he protests a way too much. Which he 0:03:01.120 --> 0:03:04.360 is a co owner of the house under whatever ownership 0:03:04.480 --> 0:03:09.240 arrangement there is, he has the ability to change the 0:03:09.360 --> 0:03:13.200 house and what is displayed on it. And if he couldn't, 0:03:13.600 --> 0:03:17.560 he surely must recognize that reasonable people would feel that 0:03:17.560 --> 0:03:21.560 that casts a question on his impartiality. Most people don't 0:03:21.680 --> 0:03:26.919 understand the intricacies of property ownership. It would assume quite 0:03:26.960 --> 0:03:29.880 reasonably that a flag displayed in front of his house 0:03:29.960 --> 0:03:31.040 tells us what he thinks. 0:03:31.600 --> 0:03:35.320 Initially, he denied the flag was hung upside down as 0:03:35.360 --> 0:03:37.640 a political protest. He said it was flown by his 0:03:37.720 --> 0:03:41.160 wife in response to a neighbour's yard signs that were 0:03:41.200 --> 0:03:44.960 critical of Trump, saying Trump is a fascist, etc. So 0:03:45.200 --> 0:03:48.320 there was a political reason, then tied to the former 0:03:48.440 --> 0:03:51.840 president who was accused of taking part in a coup attempt, 0:03:52.040 --> 0:03:54.840 you know, days earlier to the flying of the flag. 0:03:55.520 --> 0:03:59.280 Yes, that's obviously political. What you or I think about 0:03:59.360 --> 0:04:04.400 the president United States or a former president is inevitably political, 0:04:04.760 --> 0:04:08.720 and it's political relating to cases that he was deciding. 0:04:09.520 --> 0:04:13.600 As far as the Appeal to Heaven flag flown outside 0:04:13.680 --> 0:04:17.080 his beach residence in New Jersey, he said he wasn't 0:04:17.120 --> 0:04:20.279 familiar with the flag's meaning. I was not aware of 0:04:20.320 --> 0:04:23.479 any connection between the historic flag and the Stop the 0:04:23.520 --> 0:04:26.960 Steel movement, and neither was my wife. So he's just 0:04:27.000 --> 0:04:28.000 feigning ignorance. 0:04:28.600 --> 0:04:31.560 This is a very smart justice, a very learned justice, 0:04:31.560 --> 0:04:35.280 a very well read justice, and a justice who, in 0:04:35.440 --> 0:04:39.039 his opinions, in his interventions in oral argument, shows a 0:04:39.040 --> 0:04:42.000 great deal of knowledge about a great many things. I 0:04:42.120 --> 0:04:45.039 don't know what he does or does not know, but 0:04:45.440 --> 0:04:48.359 I know a reasonable person would assume that he knows 0:04:48.400 --> 0:04:52.360 what that means, and would assume that that indicates a 0:04:52.520 --> 0:04:57.560 pre commitment. In cases involving January sixth, he cited. 0:04:57.160 --> 0:05:01.000 The recently adopted Code of conduct by this Court. A 0:05:01.240 --> 0:05:04.960 justice should disqualify himself for herself in a proceeding in 0:05:05.000 --> 0:05:09.839 which the justice's impartiality might reasonably be questioned. That is, 0:05:09.880 --> 0:05:12.839 we're an unbiased and reasonable person who's aware of all 0:05:12.960 --> 0:05:17.400 relevant circumstances would doubt that the Justice could fairly discharge 0:05:17.480 --> 0:05:20.279 his or her duties, and he said that these two 0:05:20.320 --> 0:05:24.320 incidents of flag flying don't meet the conditions for recusal. 0:05:24.760 --> 0:05:30.120 But we have people, lawmakers and others saying that this 0:05:30.279 --> 0:05:34.320 puts his impartiality in question. So it seems like it 0:05:34.400 --> 0:05:35.440 does satisfy it. 0:05:35.960 --> 0:05:40.400 Oh, it certainly satisfies it. This is something that, if 0:05:40.440 --> 0:05:44.200 the shoes were on the other foot, would be subject 0:05:44.200 --> 0:05:49.800 to enormous outrage. Much more tangential indications of commitment have 0:05:49.960 --> 0:05:54.000 been cited by former President Trump and many others as 0:05:54.080 --> 0:05:58.479 signs of bias, And indeed, a liberal Supreme Court Justice A. 0:05:58.680 --> 0:06:02.200 Ford Us was put off the court in significant part 0:06:02.360 --> 0:06:07.279 because of perceptions of bias in favor of the Johnson 0:06:07.320 --> 0:06:09.159 administration that were much weaker than this. 0:06:09.800 --> 0:06:12.080 What does it say about that ethics code that the 0:06:12.320 --> 0:06:16.279 Justice is adopted last year, which they get to enforce themselves. 0:06:16.360 --> 0:06:19.120 I mean, is it worth the paper it was printed on? 0:06:19.560 --> 0:06:24.360 No, it's completely worthless. The lack of independent and forcibility 0:06:24.720 --> 0:06:28.680 or even independent fact finding makes it worthless right there. 0:06:28.839 --> 0:06:32.719 But then when you look deeper, the substance of it 0:06:32.800 --> 0:06:36.800 is completely flimsy. It is for the sake of quieting 0:06:36.839 --> 0:06:40.200 public outrage, not for actually improving the ethical standards of 0:06:40.240 --> 0:06:40.599 the court. 0:06:41.040 --> 0:06:43.960 Is it rare for justices to get into this back 0:06:44.000 --> 0:06:47.960 and forth with lawmakers, you know, writing letters responding to them. 0:06:48.279 --> 0:06:51.680 I mean, does it show that Alito might be concerned 0:06:51.720 --> 0:06:54.560 about public reaction for once to. 0:06:54.440 --> 0:06:59.240 Some extent, yes, Justice Alito has been more willing to 0:06:59.400 --> 0:07:03.680 engage in the popular media than most Supreme Court justices 0:07:03.760 --> 0:07:06.479 of the modern era have been. And this it's consistent 0:07:06.560 --> 0:07:07.919 with those tendencies. 0:07:08.640 --> 0:07:12.560 So Senator Dick Durbin, the chair of the Judiciary Committee, 0:07:12.640 --> 0:07:16.119 and Senator Sheldon Whitehouse wrote a letter to the Chief 0:07:16.280 --> 0:07:19.640 Justice Roberts asking him to make certain that Alito recuses 0:07:19.720 --> 0:07:22.440 himself in any case is related to the twenty twenty 0:07:22.680 --> 0:07:26.120 presidential election in the January sixth attack on the Capitol, 0:07:26.400 --> 0:07:29.800 and they also requested a meeting with Roberts as soon 0:07:29.840 --> 0:07:34.040 as possible, and Roberts refused on both counts. He refused 0:07:34.080 --> 0:07:37.640 to meet with the senators, saying, apart from ceremonial events, 0:07:37.680 --> 0:07:41.080 only on rare occasions in our nation's history has a 0:07:41.160 --> 0:07:45.120 sitting chief justice met with legislators, and he refused to 0:07:45.120 --> 0:07:48.280 get involved in the request for Alito to recuse it all, 0:07:48.880 --> 0:07:53.000 saying members of the Supreme Court recently reaffirmed the practice 0:07:53.040 --> 0:07:55.520 we have followed for two hundred and thirty five years 0:07:55.880 --> 0:08:00.880 pursue into which individual justices decide recusal issue chose. This 0:08:01.000 --> 0:08:02.840 is the second time in less than a year that 0:08:02.880 --> 0:08:07.960 there have been ethical controversies surrounding Justice Alito. Isn't it 0:08:08.000 --> 0:08:09.720 time for Roberts to get involved? 0:08:10.160 --> 0:08:14.680 He certainly could step in. The Other justices on occasions 0:08:14.720 --> 0:08:20.520 in the past, have chosen to prevent justices who they 0:08:20.560 --> 0:08:24.880 thought were impaired from participating in decisions. There are seven 0:08:25.160 --> 0:08:28.480 justices that do not have these questions about them, and 0:08:28.600 --> 0:08:32.560 they could simply decide that they will not hand down 0:08:32.679 --> 0:08:36.520 any decisions in which Justice Alito's vote is decisive, or 0:08:37.000 --> 0:08:40.199 if they are similarly concerned with the ethical questions about 0:08:40.320 --> 0:08:42.640 Justice Thomas in which either of their votes are decided. 0:08:43.200 --> 0:08:47.319 If they do that, they still have a solid conservative majority, 0:08:47.920 --> 0:08:52.360 and the outcomes of cases might well not change, but 0:08:52.520 --> 0:08:54.960 the public confidence certainly would be much higher. 0:08:55.240 --> 0:09:00.000 Democratic Senator Richard Blumenthal has also suggested that the Chief 0:09:00.040 --> 0:09:04.440 Chief Justice should just refuse to assign opinions to Alito 0:09:04.600 --> 0:09:05.280 and Thomas. 0:09:06.120 --> 0:09:10.160 That's completely within the Chief justices authority, but I'm not 0:09:10.200 --> 0:09:14.280 sure what that accomplishes. Justices on the Supreme Court to 0:09:14.360 --> 0:09:18.480 exercise much of their power through their votes, and unless 0:09:18.920 --> 0:09:24.520 the individual justice refuses themselves or the other justices refuse 0:09:24.640 --> 0:09:29.800 to allow that justice's vote to be decisive, then the 0:09:30.400 --> 0:09:33.480 compromise justice will still be able to participate and still 0:09:33.520 --> 0:09:34.240 have great power. 0:09:35.000 --> 0:09:38.600 Senator Durbin said he's not going to hold any hearings 0:09:38.640 --> 0:09:42.200 on this or do anything further. But unless Congress does 0:09:42.240 --> 0:09:45.640 something further, this is going to continue, isn't it? With 0:09:45.960 --> 0:09:50.000 justices not recusing themselves when it seems apparent they should. 0:09:50.360 --> 0:09:54.400 Another example is Justice Clarence Thomas taking part in January 0:09:54.440 --> 0:09:57.680 sixth case is when his wife had some involvement there. 0:09:58.000 --> 0:09:59.920 I mean, there seems to be no way to force 0:10:00.160 --> 0:10:05.400 ethical obligations on these justices when they're deciding for themselves, 0:10:05.480 --> 0:10:07.000 and no one is overlooking that. 0:10:07.679 --> 0:10:07.959 Well. 0:10:08.040 --> 0:10:10.600 There are several people that could impose us f coal 0:10:10.640 --> 0:10:13.840 obligations on them, but none are willing. The Justice themselves 0:10:14.280 --> 0:10:19.240 could do so. There's ample precedent of not engaging in 0:10:19.760 --> 0:10:23.240 over political activity when you're sitting on the court and 0:10:23.440 --> 0:10:27.400 not taking valuable gifts from parties with interests in front 0:10:27.440 --> 0:10:29.960 of the court so that justice could do it themselves. 0:10:29.960 --> 0:10:34.000 The others have injustices could do it for them by 0:10:34.480 --> 0:10:39.560 refusing to allow those two to cast siding votes in 0:10:39.679 --> 0:10:44.559 cases where they're compromised. Congress could do it by passing legislation. 0:10:45.160 --> 0:10:49.280 The Constitution says that the Supreme Court's jurisdiction is subject 0:10:49.320 --> 0:10:52.959 to any exceptions Congress wishes to make, and Congress could 0:10:53.000 --> 0:10:56.960 simply say that the Court has no jurisdiction in cases 0:10:57.000 --> 0:11:01.960 in which justices are compromised, and Congress could impeach and 0:11:02.080 --> 0:11:05.880 remove one or more justices. The fact is that Congress 0:11:05.960 --> 0:11:08.760 isn't going to do that because the voters have not 0:11:09.520 --> 0:11:13.800 demanded that Congress do that and have not insisted that 0:11:14.240 --> 0:11:17.760 their representatives in Congress be willing to hold the Court 0:11:17.800 --> 0:11:18.720 to a higher standard. 0:11:19.120 --> 0:11:21.920 Reading Alito's letter, it just seemed to me that he's 0:11:22.200 --> 0:11:25.320 just not self aware. He may be smart, he may 0:11:25.360 --> 0:11:28.560 be brilliant, even but he's not self aware. He writes 0:11:28.600 --> 0:11:31.320 this about his wife. She makes her own decisions, and 0:11:31.360 --> 0:11:34.280 I have always respected her right to do so, And 0:11:34.360 --> 0:11:37.720 it seems so ironic to me, considering his decision to 0:11:37.840 --> 0:11:41.600 take away every woman's right to choose to decide what 0:11:41.760 --> 0:11:43.280 to do with her own body. 0:11:43.480 --> 0:11:48.680 Well, it is, and the notion of hiding behind one's 0:11:49.040 --> 0:11:55.600 wife to excuse one's conduct is one that unfortunately, men 0:11:55.720 --> 0:11:59.640 have used throughout the years, not to empower women, but 0:11:59.720 --> 0:12:03.680 to exploit them. And in that sense this fits with 0:12:04.120 --> 0:12:09.559 the pattern. It's also striking that he expresses such ambivalence 0:12:10.160 --> 0:12:16.880 about what these flags mean when quite recently he wrote 0:12:16.880 --> 0:12:22.400 a concurring opinion in a case about flying flags in 0:12:22.920 --> 0:12:26.679 Boston City Hall in which he said flags are very important. 0:12:26.480 --> 0:12:29.600 And in this one he said, my wife likes flying flags. 0:12:29.720 --> 0:12:33.960 I don't, which suggests that flags are not very important. 0:12:34.080 --> 0:12:34.719 So which is it? 0:12:35.000 --> 0:12:35.320 Justice? 0:12:35.600 --> 0:12:38.800 You want to have it both ways, I guess Congressman 0:12:38.920 --> 0:12:42.160 Jamie Raskin saying that you know, the Justice Department can 0:12:42.200 --> 0:12:43.640 do something if it wants to. 0:12:43.960 --> 0:12:47.400 What is he referring to, Well, there is a statute 0:12:47.520 --> 0:12:53.080 part of the Judiciary Act that requires justices to recuse 0:12:53.160 --> 0:12:59.280 themselves if a reasonable person could regard them as being 0:12:59.360 --> 0:13:04.000 biased particular case, and that requires them to refuse themselves 0:13:04.480 --> 0:13:08.120 if they have or their spouses have certain kinds of 0:13:08.480 --> 0:13:11.960 connections with the parties or the interests or the outcome 0:13:12.000 --> 0:13:16.840 in the case. This statute pretty clearly is implicated by 0:13:17.760 --> 0:13:21.440 Justice Alito's flag flying and by some of the valuable 0:13:21.480 --> 0:13:24.360 gifts that he and Justice Thomas have received by parties 0:13:24.360 --> 0:13:27.199 with interest in front of the court. This statute does 0:13:27.240 --> 0:13:32.199 not require anyone to file any emotions. Historically, as Justice 0:13:32.280 --> 0:13:37.160 Roberts says, individual judges and justices have taken upon themselves 0:13:37.240 --> 0:13:41.480 to recuse themselves. But the Justice Department, as a party 0:13:41.960 --> 0:13:46.120 to these cases, is certainly able to file emotion for 0:13:46.160 --> 0:13:48.360 the refusal of these justices. 0:13:48.280 --> 0:13:51.560 But unlikely too, because of the repercussions. 0:13:52.679 --> 0:13:55.880 Very unlikely too. It would be refusal in just a 0:13:55.880 --> 0:13:59.200 few cases, and the Justice Department appears in front of 0:13:59.200 --> 0:14:02.559 the Court on dozens of cases every year and would 0:14:02.559 --> 0:14:07.160 not want to alienate two of the nine justices for 0:14:07.360 --> 0:14:10.800 all of those other cases by pressed seeing a recusal 0:14:10.840 --> 0:14:16.000 in this one. And in fact, the likelihood that either 0:14:16.200 --> 0:14:20.160 justice would recuse themselves when they've so far refused to 0:14:20.200 --> 0:14:22.200 do so is infinitesimal. 0:14:22.760 --> 0:14:26.680 During the oral arguments on the presidential immunity case, some 0:14:26.800 --> 0:14:32.360 of Justice Alito's comments were supportive of presidential immunity. In 0:14:32.800 --> 0:14:36.200 first of all, they've delayed this so long and then 0:14:36.240 --> 0:14:38.760 decided to take it and then did it on the 0:14:38.840 --> 0:14:41.800 last day of the session, and now probably there won't 0:14:41.840 --> 0:14:44.840 be a decision until the end of June. I mean, 0:14:44.880 --> 0:14:47.240 how do you think the public will receive it if 0:14:47.440 --> 0:14:51.040 it's again a six to three vote down ideological lines. 0:14:51.560 --> 0:14:51.720 Oh. 0:14:51.760 --> 0:14:55.520 I think the public will be quite troubled because the 0:14:55.560 --> 0:14:58.680 Supreme Court has shown on numerous occasions its ability to 0:14:58.720 --> 0:15:02.360 move very very sat when important issues are at stake. 0:15:02.720 --> 0:15:09.360 They took cases involving the restrictions under the pandemic very quickly. 0:15:09.960 --> 0:15:15.200 They've engaged very quickly in challenges to things that President 0:15:15.240 --> 0:15:18.480 Trump did about immigration about Muslims. They can move fast 0:15:18.480 --> 0:15:21.280 if they want to. Their choice to move slowly, and 0:15:21.360 --> 0:15:26.120 particularly if the final decision is one that requires a 0:15:26.200 --> 0:15:30.080 remand and lengthy proceedings below which everybody knows will then 0:15:30.160 --> 0:15:34.000 get further appealed. I think a great many voters will 0:15:34.040 --> 0:15:36.640 believe that the majority the Court is running out the 0:15:36.680 --> 0:15:40.400 clock for the President to allow him to avoid going 0:15:40.440 --> 0:15:41.640 to trial before the election. 0:15:42.360 --> 0:15:46.800 Thanks so much, David Best. Professor David Super of Georgetown Law. 0:15:47.160 --> 0:15:50.400 In a unanimous decision, the Supreme Court cleared the way 0:15:50.520 --> 0:15:54.400 for an NRA lawsuit against a former New York state official, 0:15:54.800 --> 0:16:00.000 overclaimed she unconstitutionally pressured companies to blacklist the gun law 0:16:00.160 --> 0:16:04.440 be Following the deadly twenty eighteen school shooting in Parkland, Florida, 0:16:05.120 --> 0:16:09.120 Justice Sonya Sotomayor wrote that the critical takeaway is that 0:16:09.240 --> 0:16:13.720 the First Amendment prohibits government officials from wielding their power 0:16:13.840 --> 0:16:18.200 selectively to punish or suppress speech. Joining me his First 0:16:18.240 --> 0:16:22.160 Amendment expert Eugene Volik, a professor at UCLA Law School. 0:16:22.600 --> 0:16:25.400 He was counsel of record to the NRA before the 0:16:25.440 --> 0:16:29.080 Supreme Court. Eugene, what many people may see as unusual 0:16:29.160 --> 0:16:32.960 here is that a lawyer for the ACLU argued the 0:16:33.040 --> 0:16:36.200 case for the NRA before the Supreme Court. 0:16:36.520 --> 0:16:40.480 David Cole was a very experienced from court advocate. More importantly, 0:16:40.560 --> 0:16:44.280 I think what was really helpful is that there were 0:16:44.360 --> 0:16:48.280 the NRA and the ACLU before the Court together. I 0:16:48.280 --> 0:16:51.520 think that sends an important message about the significance of 0:16:51.520 --> 0:16:54.720 the case and about the breadth of the First Amendment issue. 0:16:54.960 --> 0:16:57.920 Start by telling us, know what you think the significance 0:16:57.960 --> 0:16:58.760 of this case is. 0:16:59.400 --> 0:17:03.640 So let's say the government falls up, some intermediary maybe 0:17:03.640 --> 0:17:06.520 calls up a bookstore or calls up a billboard owner 0:17:06.880 --> 0:17:09.320 or calls up an insurance company and says, you know, 0:17:09.840 --> 0:17:14.080 we think that the advocacy groups you're dealing with, or 0:17:14.119 --> 0:17:17.560 the books that you're distributing, or the group that is 0:17:17.640 --> 0:17:20.520 buying space on your billboard, we think that its messages 0:17:20.560 --> 0:17:24.359 are bad messages. We think they're bad for society in 0:17:24.440 --> 0:17:28.720 various ways, and we'd like you to stop doing that. 0:17:29.080 --> 0:17:31.840 And what's more, we have power over you. We could 0:17:31.960 --> 0:17:35.360 be the police department, or the Justice Department, or financial 0:17:35.400 --> 0:17:39.399 regulatory thought that could have a profoundly coercive effect on 0:17:39.440 --> 0:17:43.919 these intermediaries that even without actual prosecution or a civil 0:17:44.040 --> 0:17:47.639 case against the actual speaker, these kinds of threats to 0:17:47.720 --> 0:17:51.520 intermediaries can do a lot to make it harder for 0:17:51.600 --> 0:17:54.639 the speakers to speak because they won't be able to 0:17:54.720 --> 0:17:57.840 distribute their books through certain bookstores, or they won't have 0:17:57.960 --> 0:18:00.960 financial services that they need in order to So the 0:18:01.080 --> 0:18:04.840 NRA alleged that that's what the New York Department of 0:18:04.880 --> 0:18:10.679 Financial Services did, that it pressured various financial companies insurance companies, banks, 0:18:10.680 --> 0:18:13.960 and the like to stop doing business with the NRA 0:18:14.160 --> 0:18:16.439 and thus make it farther for the NRA to engage 0:18:16.480 --> 0:18:19.000 in its advocacy. But of course this isn't a second 0:18:19.040 --> 0:18:21.760 amendent case. It's a first Amendment case. It applies to everybody. 0:18:21.800 --> 0:18:23.800 It could equally be some other state try to do 0:18:23.840 --> 0:18:26.760 the same to plant Parenthoot, or some state trying to 0:18:26.800 --> 0:18:30.280 do the same to a Propoalestinian organization or a pro 0:18:30.359 --> 0:18:34.000 Israeli organization. So this is a broad first Amendment question 0:18:34.359 --> 0:18:37.880 that the courts dealt with and unanimously resolved in favor 0:18:37.960 --> 0:18:40.600 of the speakers and said, look, if it can be 0:18:40.680 --> 0:18:43.480 shown that the government was engaging in such coersion. At 0:18:43.520 --> 0:18:46.000 this point, it's just alleged. This is just an emotion 0:18:46.119 --> 0:18:49.560 to dismiss. So nothing has improved yet. But if it 0:18:49.640 --> 0:18:53.040 could be shown in court that the government was pressuring 0:18:53.119 --> 0:18:57.360 intermediaries to stop doing business with organizations because of those 0:18:57.440 --> 0:19:01.680 organization speech, that would be potentially a first to women violation. 0:19:02.040 --> 0:19:05.080 That's an important holding. It reaffirms a principle that was 0:19:05.119 --> 0:19:07.880 first announced by the court more than sixty years ago. 0:19:08.440 --> 0:19:11.040 But it's an important principle that's worth reaffirming. 0:19:11.080 --> 0:19:15.080 I think, so Eugene, was this case an easy one 0:19:15.119 --> 0:19:17.080 for the justices to decide. 0:19:16.680 --> 0:19:20.240 Then well, they were unanimous. There were concurrences from Justice 0:19:20.280 --> 0:19:23.800 Gorsic and from Justice Jackson, but both of them joined 0:19:23.920 --> 0:19:26.240 all the other justices, So I think at that level 0:19:26.240 --> 0:19:29.879 it probably seemed pretty straightforward for the court. This having 0:19:29.880 --> 0:19:33.040 been said, you know, the Second Circuit ruled the other way, 0:19:33.480 --> 0:19:35.760 ruled against the NRA in this case and said, on 0:19:35.800 --> 0:19:40.159 these facts, there's not enough allegation of coercion. So you know, 0:19:40.800 --> 0:19:43.680 I like to think, I mean, I'm representing the NRA here, 0:19:44.560 --> 0:19:47.080 I'm obviously not an impartial party here. I like to 0:19:47.080 --> 0:19:49.320 think we have a very strong case, and the US 0:19:49.359 --> 0:19:51.560 Supreme Court agreed with us. But at the same time, 0:19:51.680 --> 0:19:55.000 this was something that lower courts, you know, had struggled 0:19:55.040 --> 0:19:57.520 with in various kinds of cases, and I think this 0:19:57.680 --> 0:20:01.159 is something that the Supreme Courts unanimous decision here is 0:20:01.240 --> 0:20:02.280 going to provide more. 0:20:02.119 --> 0:20:05.800 Guidance for lower What was the argument at the Supreme 0:20:05.880 --> 0:20:10.359 Court of Maria Vulo, the New York state official who 0:20:10.520 --> 0:20:14.720 was the former superintendent of the Department of Financial Services. 0:20:15.119 --> 0:20:17.320 First of all, there were, as usual in these kinds 0:20:17.320 --> 0:20:21.440 of cases, there is or usual various procedural arguments. The 0:20:21.560 --> 0:20:24.720 lawyer's cruse superpower is that we can turn any question 0:20:24.800 --> 0:20:27.919 into a question about procedures. The Supreme Court was not 0:20:28.000 --> 0:20:31.240 impressed by their procedural arguments for various reasons. I won't 0:20:31.240 --> 0:20:33.720 detain you further with them. I don't think your listeners 0:20:33.720 --> 0:20:36.199 are going to be terribly interested. But a lot of 0:20:36.200 --> 0:20:39.639 the argument was about this procedural bush substantively. One of 0:20:39.680 --> 0:20:42.480 the things that New York said is, look, we're entitled 0:20:42.520 --> 0:20:45.560 to speak out. We as the government, We're entitled to say, oh, 0:20:45.640 --> 0:20:49.040 the NRA is bad, gun control is good. And the 0:20:49.080 --> 0:20:51.960 Supreme Court agreed, and we agreed. Of course, the government 0:20:52.000 --> 0:20:54.880 is entitled to express its views. But the Court said, 0:20:55.080 --> 0:20:58.240 what was going on here, at least as alleged by 0:20:58.280 --> 0:21:03.120 the NRA, was not just the government's self expression. It 0:21:03.200 --> 0:21:06.359 was rather the government saying things in a way that 0:21:07.119 --> 0:21:11.480 might be seen as coercive to a reasonable financial intermediate. 0:21:12.080 --> 0:21:14.879 And once the government stops just trying to persuade and 0:21:14.960 --> 0:21:18.639 begins kind of pressure that could be coercive, well that's 0:21:18.680 --> 0:21:22.480 where the government's right to speak stops, and the NRAs 0:21:22.480 --> 0:21:25.080 and other such groups for First Amendment right to start. 0:21:25.400 --> 0:21:27.359 Another thing that the New York argued is that the 0:21:27.480 --> 0:21:31.720 NRA had participated in various insurance transactions that were illegal 0:21:31.840 --> 0:21:35.760 under New York insurance law, and for the purposes of 0:21:35.800 --> 0:21:38.439 this case, the Supreme Courts was willing to assume that 0:21:38.520 --> 0:21:41.760 this was so. But the Court said it doesn't matter. Obviously, 0:21:41.800 --> 0:21:45.320 if the NRA had violated some rules, then those rules 0:21:45.359 --> 0:21:47.800 could be enforced against the NRA and could be punished 0:21:47.840 --> 0:21:51.080 in various ways, could find and such. But what the 0:21:51.400 --> 0:21:53.320 New York government was trying to do is not just 0:21:53.359 --> 0:21:57.240 imposifying on the NRA for past contact, but was trying 0:21:57.280 --> 0:22:02.280 to pressure, at least as alleged to pressure financial intermediaries 0:22:02.800 --> 0:22:05.240 to stop doing business with the enteray in the future 0:22:05.280 --> 0:22:10.320 as well, including for perfectly legal transactions. So the Court acknowledged, 0:22:10.359 --> 0:22:13.680 of course, the government has the power to speak. Of course, 0:22:13.720 --> 0:22:17.680 the government has the power to enforce neutral conduct restrictions, 0:22:17.680 --> 0:22:21.640 such as restrictions on certain kinds of insurance practices. What 0:22:21.680 --> 0:22:25.080 the government can't do is try to use those powers 0:22:25.280 --> 0:22:28.280 as a means of trying to punish or deter or 0:22:28.320 --> 0:22:30.960 otherwise interfere with constitutionally protected speech. 0:22:32.000 --> 0:22:36.080 Did you and the ACLU take this case in order 0:22:36.160 --> 0:22:42.639 to support the broad principle of free speech for all organizations, 0:22:42.680 --> 0:22:46.639 no matter what they represent this is going back to 0:22:46.680 --> 0:22:51.000 the lower courts. But there's a qualified immunity argument that 0:22:51.040 --> 0:22:55.960 the Supreme Court didn't discuss. Could that actually stop the 0:22:56.000 --> 0:22:57.160 case from going forward? 0:22:57.800 --> 0:23:01.240 Well, so there's a qualified immunity argument here which says 0:23:01.280 --> 0:23:03.560 that in any case, Ania shouldn't be able to get 0:23:03.680 --> 0:23:06.880 damages because the law wasn't clearly settled. The Supreme Court 0:23:06.880 --> 0:23:09.400 didn't reach that. It said, look, we've resolved the substance 0:23:09.400 --> 0:23:11.600 of First Amendment argument. We're going to leave it to 0:23:11.640 --> 0:23:15.640 lower courts deal further with any qualified immunity claims. They're 0:23:15.640 --> 0:23:18.960 also injunctive claims that in this case that wouldn't be 0:23:19.000 --> 0:23:21.040 subject to qualified immunity in any event. 0:23:20.840 --> 0:23:25.120 Of the like the Court is considering similar issues in 0:23:25.160 --> 0:23:30.320 a fight over the Biden administration's communications with social media companies. 0:23:30.520 --> 0:23:34.360 Does this decision at all indicate how that case might 0:23:34.400 --> 0:23:35.080 be decided. 0:23:35.760 --> 0:23:37.879 It does not speak to that case. This is the 0:23:37.960 --> 0:23:40.760 mercy the Missouri case, and I think the Court bard 0:23:40.840 --> 0:23:45.120 deliberately didn't dip its hand. It tries not to disclose 0:23:45.480 --> 0:23:47.520 upfront what it's going to be deciding, even in a 0:23:47.560 --> 0:23:52.159 couple of weeks. This case involved a pretty straightforward application. 0:23:52.320 --> 0:23:54.679 This principle set forth over sixty years ago. In this 0:23:54.720 --> 0:23:57.480 case called Bantam Books be solid. It involved a claim 0:23:57.680 --> 0:24:01.520 that the government was coercing inter dearies to stop doing 0:24:01.560 --> 0:24:04.800 business with speakers. And the real question was was there 0:24:04.920 --> 0:24:08.879 enough alleged to find that kind of courson in mercy? 0:24:08.960 --> 0:24:12.240 The facts are very different, So there's a separate question 0:24:12.320 --> 0:24:15.879 there was enough alleged there to show that there was 0:24:16.040 --> 0:24:19.800 coersion by the government of social media platforms, And the 0:24:19.880 --> 0:24:22.240 court may very well say in that case, yes there 0:24:22.320 --> 0:24:25.760 was or there wasn't. But the decision in this case 0:24:26.400 --> 0:24:29.680 likely wouldn't affect much but what it decided there. Likewise, 0:24:29.720 --> 0:24:32.720