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

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Speaker 2: The Biden administration says that Texas's sweeping immigration law, known

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Speaker 2: as SB four, is unconstitutional because it violates the federal

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Speaker 2: government's sole authority to set immigration policy. The law authorizes

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Speaker 2: state officials to arrest, detain, and deport non citizens who

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Speaker 2: enter the country illegally, but it's only gone into effect

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Speaker 2: for a grand total of nine hours. That's because it's

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Speaker 2: been meandering through the federal courts, including a trip to

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Speaker 2: the Supreme Court, and in the law's second appearance at

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Speaker 2: the Fifth Circuit Court of Appeals, the Texas Elicitor General

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Speaker 2: Lloyd Nielsen made a remarkable admission, maybe the law goes

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Speaker 2: too far.

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Speaker 3: What Texas has done here is they have looked at

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Speaker 3: the Supreme Court's president and they have tried to develop

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Speaker 3: a statute that goes up to the line of court

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Speaker 3: precedent but allows Texas to protect the border. Now, to

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Speaker 3: be fair, maybe Texas went too far, and that's the

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Speaker 3: question the Sport's going to have to decide. But that's

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Speaker 3: the context of which we are here. Texas has looked

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Speaker 3: at the Supreme Court precedent and the laws that Congress

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Speaker 3: has enacted and has tried to develop a law that

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Speaker 3: goes up to the edge, but no further.

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Speaker 2: It was before the same panel that on March twenty six,

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Speaker 2: by a two to one vote, blocked the law temporarily

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Speaker 2: in an opinion by Chief Judge Priscilla Richmond, who wrote

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Speaker 2: that the law likely interferes with federal immigration policy, but

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Speaker 2: at oral arguments, the Solicitor General now claimed that Texas

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Speaker 2: doesn't deport anybody. He said police would take migrants to

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Speaker 2: a port of entry controlled by the federal government, leaving

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Speaker 2: Chief Judge Richmond to question the point of the law.

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Speaker 2: You can take let's say, one hundred and fifty people

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Speaker 2: at a time back to Eagle.

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Speaker 3: Pass, Yes, or some other port of entry, Yes.

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Speaker 2: Your honor, and then the federal government's going to process him.

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Speaker 3: Is that how you yes, your honor, And that's it's

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Speaker 3: going to.

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Speaker 4: Say, here's your notice or whatever you can stay in.

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Speaker 2: And so then Texas, what's the status?

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Speaker 4: What has the statute accomplished?

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Speaker 2: I'm just curious. Yes, joining me is immigration law expert

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Speaker 2: Leon Fresco, a partner at Holland and Knight and a

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Speaker 2: former Justice Department official. Leon Tell us about the litigation

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Speaker 2: over this law.

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Speaker 4: This case has gone through quite the long and winding road.

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Speaker 4: To use the Beatles reference, where it starts in the

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Speaker 4: District Court, and the District Court enjoins the law very

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Speaker 4: simply as being in contravention to the Supreme Court's twenty

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Speaker 4: twelve decision in Arizona. Then the Fifth Circuit actually lifts

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Speaker 4: the same momentarily and says that the law can go

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Speaker 4: into effect, and then that goes to the Supreme Court,

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Speaker 4: who then says, hey, wait a second, there actually wasn't

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Speaker 4: a real ruling here with regard to the merits of

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Speaker 4: whether the state should be lifted or not, so we're

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Speaker 4: not going to get involved in reviewing what is a

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Speaker 4: de facto decision that just says, go to the Supreme

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Speaker 4: Court and figure that out. So when they kicked it

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Speaker 4: back to the Fifth Circuit, the Fifth Circuit, paneled two

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Speaker 4: to one, actually put in a temporary stay. And then

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Speaker 4: what happened is while the law is temporarily saved, there

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Speaker 4: is now an oral argument that occurred on whether that

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Speaker 4: state should be extended. But at the moment, the law

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Speaker 4: is not in effect and it stayed pursuing to a

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Speaker 4: temporary state, and what.

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Speaker 2: Would the law allow Texas to do.

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Speaker 4: The law would allow Texas to basically create the facto

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Speaker 4: deportation events, essentially, because while Texas cannot actually deport people

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Speaker 4: to Mexico, what they would do is if they apprehended

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Speaker 4: people who were unlawfully in Texas, they would then take

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Speaker 4: those people, transport them to the Mexico Texas border and

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Speaker 4: say you have two choices. Either go into Mexico or

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Speaker 4: if we catch you again, you will be arrested and

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Speaker 4: you will actually be charged with a felony of remaining

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Speaker 4: in the United States or re entering the United States,

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Speaker 4: depending on what you do after you've already been charged

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Speaker 4: with the misdemeanor. And so that was placed under great

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Speaker 4: scrutiny in this oral argument because Texas tried to recast

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Speaker 4: that as no, we're not actually creating these self deportations,

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Speaker 4: we're just going to give them to the federal government

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Speaker 4: and we're cooperating with them so that they can do it,

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Speaker 4: to which the court said, well, guess what the federal

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Speaker 4: government's doing you and they're saying they don't want this cooperation,

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Speaker 4: So how can you say that's what you're doing. And

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Speaker 4: this is where there was some complications in the oral argument.

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Speaker 2: Yeah, it was kind of surprising that the Czexas Solicitor

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Speaker 2: General said that the law was crafted in a way

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Speaker 2: that goes up to the line of Supreme Court President,

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Speaker 2: and he admitted that maybe across.

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Speaker 4: The line, right, he was basically trying to get what's

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Speaker 4: known as a severance doctrine, where the illegal parts of

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Speaker 4: the law could be severed away while still keeping the

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Speaker 4: legal parts of the law. But the problem is, it's

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Speaker 4: not really clear what's legal under the Arizona case. The

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Speaker 4: only thing that Arizona permits is for state officials to

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Speaker 4: check on someone's status and report them die. So, yes,

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Speaker 4: they can do that, and they've been doing that, and

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Speaker 4: they can continue to do that. But with regard to

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Speaker 4: actually arresting people and charging them for a crime, the

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Speaker 4: Arizona Supreme Court decision actually already says that is illegal.

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Speaker 4: And then when you add this second component of actually

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Speaker 4: taking human beings back to the Mexico US border line

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Speaker 4: and telling them and you have two options to port

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Speaker 4: yourself or face four criminal charges, that would be completely

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Speaker 4: in contravention of the Arizona Supreme Court case.

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Speaker 2: Let's say Texas does this will Mexico take those people back?

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Speaker 4: Well, this is where Mexico has said that it's not

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Speaker 4: going to cooperate with any state or local deportation efforts.

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Speaker 4: It will only cooperate with the federal government. Now what's

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Speaker 4: not clear is what does that mean. So Mexico could

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Speaker 4: say if the individuals are crossing the ports of entry,

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Speaker 4: they could say, we're not going to let you cross

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Speaker 4: the ports of entry. But if Texas basically scares people

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Speaker 4: into recrossing the river back into Mexico, not clear what

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Speaker 4: Mexico would do there. Are they going to try to

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Speaker 4: grab them and push people back into the US. That

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Speaker 4: can create a horrible you know, human ping pong essentially

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Speaker 4: where you have forces taking people and pushing them back

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Speaker 4: and forth. So it's not clear what would happen realistically

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Speaker 4: in that Todario. But in any case, Texas what it's

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Speaker 4: really trying to do is use fear to deter people

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Speaker 4: a from not even coming into Texas in the first place,

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Speaker 4: instead going into California or Arizona. But also if they

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Speaker 4: do go into Texas, then to go away and either

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Speaker 4: leave Texas or go into Bangsico.

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Speaker 2: Did they even discuss in the oral arguments Texas's claim

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Speaker 2: that their law mayrors federal law and the federal government

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Speaker 2: divide administration isn't enforcing federal law, so they get to.

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Speaker 4: Well, correct, that's the claim of Texas. They're basically making

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Speaker 4: two claims. One is that their law mirror's federal law,

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Speaker 4: like you said, and the federal government isn't enforcing it,

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Speaker 4: so they should get the opportunity to enforce it. And

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Speaker 4: one of the judges who used to be the former

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Speaker 4: Texas solicitor General is now in the Fifth Circuit who

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Speaker 4: was appointed by President Trump. He had a lot of

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Speaker 4: sympathy for that and certainly pushing the federal government on

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Speaker 4: this lack of enforcement issue. But at the end of

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Speaker 4: the day, the point is it's very difficult to say

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Speaker 4: you're cooperating with the federal effort when the federal government,

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Speaker 4: who gets different in these proceedings, says, and I think

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Speaker 4: successfully and persuasively to the other two judges, that this

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Speaker 4: isn't contravention of what the federal government is trying to do.

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Speaker 4: They don't want this assistant. They view this assistant as illegal.

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Speaker 4: It puts the judges in a very difficult position as

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Speaker 4: to whether it will allow this to continue.

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Speaker 2: So you had the Trump appointee asking tough questions of

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Speaker 2: the federal government's attorney, and then you had one judge

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Speaker 2: who had ruled against Texas in this matter before didn't

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Speaker 2: say much, but then the Chief Judge had a lot

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Speaker 2: to say, right.

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Speaker 4: And the Chief Judge is actually appointed by George Bush,

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Speaker 4: and she's the Chief Judge of the Court, and was

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Speaker 4: actually in the past considered a conservative who might potentially

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Speaker 4: be on the Supreme Court. And she was very out

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Speaker 4: of it about how difficult it was to square the

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Speaker 4: circle with regard to the claims that the State of

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Speaker 4: Texas was making and how it was going to actually

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Speaker 4: implement this law if it was getting all of this

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Speaker 4: resistance from both Mexico and from the federal government. Because

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Speaker 4: at the end of the day, if the states were

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Speaker 4: going to take the matters into their own hands, how

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Speaker 4: would that actually work as a functional matter when this

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Speaker 4: has so much of a foreign policy nexus into what's

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Speaker 4: being negotiated between the United States and Mexico.

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Speaker 2: After this Fifth Circuit rules, what happens next in.

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Speaker 4: The case, Well, then it can be appealed again to

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Speaker 4: the Supreme Court, where the Supreme Court would decide whether

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Speaker 4: to uphold the Texas law or whether to continue to

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Speaker 4: say that the Texas law is unconstitutional. It's likely the

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Speaker 4: Fifth Circuit that here is actually likely to say that

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Speaker 4: the Texas law is unconstitutional. Perhaps Texas will try to

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Speaker 4: get a momentary victory by going on bank in the

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Speaker 4: Fifth Circuit for the full panel, which is a more

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Speaker 4: conservative court, but regardless, even if they get the temporary victory,

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Speaker 4: he will ultimately go to the Supreme Court. And even

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Speaker 4: though there are three justices that are unaccounted for, you

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Speaker 4: have Kavanaugh, you have Cony Barrett, and you have Gorsas

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Speaker 4: who are unaccounted for and could vote to overturn the

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Speaker 4: Arizona law, along with Justices Thomas and Alito who voted

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Speaker 4: during Arizona on the side of Arizona. So perhaps the

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Speaker 4: Flights could vote to overturn the Arizona decision, but it

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Speaker 4: seems unlikely that that would happen because again of these

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Speaker 4: ramifications of how a state then ends up interacting with

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Speaker 4: the Mexican government with regard to this act of basically

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Speaker 4: self supporting people back into Mexico who oftentimes will not

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Speaker 4: even be Mexican, will be from Venezuela or Cuba or

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Speaker 4: some other place where Mexico has no reason to take

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Speaker 4: people back into Mexico.

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Speaker 2: Yeah, and the Chief Judge did mention that Arizona case,

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Speaker 2: saying the laws on the books. So we'll see when

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Speaker 2: that ruling comes out. Stay with me. Leon. Coming up next,

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Speaker 2: I'll continue this conversation with Leon Fresco of Holland and Knight.

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Speaker 2: The Texas governor journeys to New York City, but not

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Speaker 2: by bus. It wasn't by bus, but Texas Governor Greg

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Speaker 2: Abbott did make the trip to New York City to

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Speaker 2: headline the New York Republican Party's annual gala last Thursday,

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Speaker 2: and Abbot said he had no plans to let up

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Speaker 2: on busing migrants to the sanctuary city, continuing his war

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Speaker 2: of words with the Mayor Eric Adams.

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Speaker 5: The complaining by Mayor Adams, there's nothing short than stunning.

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Speaker 5: What he has is a tiny fraction of what Texas

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Speaker 5: gets every single day.

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Speaker 2: The governor did not take the mayor up on his

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Speaker 2: offer to spend a night in one of the city's

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Speaker 2: migrant shelters. I've been talking to immigration law expert Leon

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Speaker 2: Fresco of Holland and Knight Leon. Immigration is going to

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Speaker 2: be one of the top issues in the presidential campaign.

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Speaker 2: And we've talked before about hints from the Biden administration

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Speaker 2: that there might be an executive action by the president.

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Speaker 2: Is there any more talk or thought by the Biden

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Speaker 2: administration of taking some kind of executive action in light

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Speaker 2: of the fact that they couldn't get the immigration bill

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Speaker 2: passed well.

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Speaker 4: The Biden administration is certainly continuing this process. They are

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Speaker 4: really engaging in a lot of debate whether it's better

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Speaker 4: to place a policy in effect that they know will

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Speaker 4: be enjoyed by the court simply so that they can

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Speaker 4: say they tried, or whether they should try to engage

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Speaker 4: in a policy that might not be as effective dominant

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Speaker 4: if you looked at it on its face, but could

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Speaker 4: actually survive judicial scrutiny. But the interesting news is that

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Speaker 4: when March ended, March was actually as a hair lower

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Speaker 4: than people were expecting with regards to border crossings. And

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Speaker 4: that's because Mexico has agreed along with the Biden administration

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Speaker 4: to help the Bide administration, especially with regards to Venezuelan.

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Speaker 4: So they are detaining Venezuelans, they are preventing Venezuelan from

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Speaker 4: entering the United States, and they're actually removing Venezuelans back

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Speaker 4: into Venezuela. And so this is having some nominal but

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Speaker 4: yet somewhat appreciable effect on the border with regards to

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Speaker 4: numbers crossing. And so only if those numbers were to

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Speaker 4: get back to the rates that were worried about, I

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Speaker 4: think is when you'd see these policies potentially being promulgated.

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Speaker 2: Leam. We've talked before about many migrants who are arrested

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Speaker 2: and then released. But in the case of eight Venezuelan

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Speaker 2: migrants who were illegally squatting illegally squatting in a home

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Speaker 2: in New York and they were arrested and found with

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Speaker 2: drugs and guns, they were released, but I seem to

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Speaker 2: have gotten involved. Then Ice then arrested or re arrested

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Speaker 2: three of them and lodged detainer requests for four others

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Speaker 2: being held in local custody.

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Speaker 4: Yes, so depending on where the Venezuelans cases, and some

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Speaker 4: of the Venezuelans who were apprehended in New York actually

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Speaker 4: already had final deportation orders and the problem was Venezuela

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Speaker 4: won't take those individuals back and so the US government

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Speaker 4: needs to decide what it's going to do with those

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Speaker 4: But some of those individuals actually hadn't even had their

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Speaker 4: process finished, because what happened was they were in the

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Speaker 4: middle of the deportation process and the individuals absconded and

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Speaker 4: didn't show up at their hearings. And so in those situations,

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Speaker 4: I have said, look what the City of New York

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Speaker 4: is done with. Whatever criminal penalties are going to be

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Speaker 4: provided to those individuals, then we want them so that

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Speaker 4: we can try to place them in deportation proceeding. Now,

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Speaker 4: the ultimate problem with all of these Venezuelans is going

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Speaker 4: to be what happens next. If Venezuela will not accept

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Speaker 4: those individuals, what is the federal government willing to do.

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Speaker 4: Is it willing to sanction Venezuela in some way that

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Speaker 4: will actually be meaningful to Venezuela so that it will

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Speaker 4: start accepting individuals. Will it actually try to do something

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Speaker 4: different in terms of parrots to make it more attractive

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Speaker 4: for Venezuela to accept people but that's the larger issue.

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Speaker 4: Or will it try to find some country who will

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Speaker 4: accept Venezuelans in exchange for some favor that the US

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Speaker 4: government is willing to do, perhaps with regard to foreign

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Speaker 4: aid or trade or something else. But those are the

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Speaker 4: options that are available to the federal government. But this

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Speaker 4: Venezuelan issue is going to continue, ne you to be

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Speaker 4: complicated so long as Venezuela is not accepting people that

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Speaker 4: the United States is trying to remove there.

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Speaker 2: So is that why Venezuelans are in the spotlight because

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Speaker 2: the country's not accepting people back or are there other

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Speaker 2: reasons why?

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Speaker 4: Well, there's a lot of issues going on at one time. One,

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Speaker 4: obviously there's a mass exodus of Venezuelans into the United States. Second,

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Speaker 4: there are now appearing to be some efforts with regard

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Speaker 4: to Venezuela with sort of emptying out some of the

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Speaker 4: undesirables from Venezuela in a way similar to what Fidel

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Speaker 4: Castro did in Cuba in the nineteen eighties to make

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Speaker 4: Venezuelan to sort of alleviate the social pressures on Venezuela.

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Speaker 4: But those pressures now get transferred to the United States

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Speaker 4: as some of those individuals arrived who are not necessarily

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Speaker 4: as safe as some others. And so I think that's

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Speaker 4: what you're seeing, is you're seeing the confluence of a

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Speaker 4: different group of Venezuelans entering into the United States, addition

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Speaker 4: to the fact that those individuals then can't be removed

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Speaker 4: back into Venezuela. And so this is something, like I said,

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Speaker 4: the last time you saw this was in the nineteen eighties,

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Speaker 4: and when this happened then it was destabilizing the quite

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Speaker 4: some number of places until those communities could figure out

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Speaker 4: what they were going to do.

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Speaker 2: Let's say Ice has some Venezuela's in custody, what are

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Speaker 2: its options.

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Speaker 4: So what happens is there's an opinion from the Supreme

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Speaker 4: Court that actually was post this nineteen eighties issue, which

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Speaker 4: was called Zavidas. And in that opinion, what they said was,

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Speaker 4: if you can't deport someone and you know you can't

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Speaker 4: support someone, you've tried for six months while you've had

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Speaker 4: them in detention and you can't support them, you have

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Speaker 4: to release them back into society under an order of

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Speaker 4: supervision where they have to report and check in, unless

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Speaker 4: you can show that there's such a danger to society

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Speaker 4: that you can indefinitely detain them. And so the federal

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Speaker 4: government has been very concerned about trying to stretch out

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Speaker 4: the constitutionality of whether it can indefinitely detain people, but basically,

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Speaker 4: anytime someone breaks their conditions, you can place them back

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Speaker 4: in detention for six months at a time, but that's

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Speaker 4: very difficult, and so if you're going to be tracking

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Speaker 4: people and they're going to be committing crimes in between

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Speaker 4: the time they're in immigration detention, that's the sort of

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Speaker 4: thing that the public doesn't like to year about when

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Speaker 4: the federal government's doing that. They don't understand what's going on.

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Speaker 4: But the problem is there is the Supreme Court decision,

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Speaker 4: which you know, understandably, you don't want to have someone

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Speaker 4: in detention for fifty years because their government won't accept them.

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Speaker 4: And all they might have done is commit something like

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Speaker 4: a shoplifting offense, and now they're suddenly in prison for

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Speaker 4: fifty years. So you have to be careful. There obviously

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Speaker 4: is a balance, but here the balance has led to

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Speaker 4: a situation where there's a little bit of a lack

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Speaker 4: of safety and stability some places because there are all

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Speaker 4: these Venezuelans who are being caught doing things in New

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Speaker 4: York City and they can't be detained because there's a

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Speaker 4: cap to how long they can be detained. Due to

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Speaker 4: the fact that they can't actually be removed back to Venezuela.

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Speaker 2: It is so complicated because you're right, you read the

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Speaker 2: stories and you go, well, why are they still here?

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Speaker 2: They've been in and out of jail and continue committing crimes.

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Speaker 2: You know, why isn't something being done? I mean, it's

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Speaker 2: just so complicated and confused.

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Speaker 4: I mean, you could, you could conceivably And this is

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Speaker 4: the thing nobody's ever tried to do, is have an

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Speaker 4: aggressive action against some country like Venezuela and say, look,

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Speaker 4: we are by force. And this is the kind of

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Speaker 4: thing Trump has talked about, we are by force bringing

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Speaker 4: people here, and go ahead, shoot out us. You know,

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Speaker 4: try whatever you're gonna try, but we're gonna We're gonna

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Speaker 4: still deport these people. We don't care. But obviously something

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Speaker 4: like that hasn't yet been dried in American history, so

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Speaker 4: it's not clear. Maybe President Trump would try that, or

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Speaker 4: maybe with scare a country to accepting people under the

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Speaker 4: threat that he's going to try these forced deportations, but

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Speaker 4: it would be considered an act of aggression because you're

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Speaker 4: invading a country's territorial boundaries without their permissions.

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Speaker 2: And the numbers in March were better, but still incredibly high.

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Speaker 4: Right, It's still very high compared to past years, that

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Speaker 4: past decades, but compared to this recent last twelve months.

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Speaker 4: March was a bit of a break from what people

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Speaker 4: expected was going to happen in March, and that's because

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Speaker 4: all of the Venezuelas people thought were coming were not

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Speaker 4: coming because Mexico was stopping them. And Venezuela has agreed

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Speaker 4: to allow deportations from Mexico, even if it hasn't agreed

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Speaker 4: to allow deportations from the United States.

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Speaker 2: The majority of migrants, what country are they from?

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Speaker 4: Well, people are still coming from all over the world,

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Speaker 4: and Mexico actually still is the highest number in terms

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Speaker 4: of just your number. But they're coming from Cuba, they're

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Speaker 4: coming from Haiti, They're coming from Venezuela. They're coming from Nicaragua,

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Speaker 4: They're coming from Central America, savad or Juatemala, there is

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Speaker 4: they're coming from Ecuador. They're coming now from parts of

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Speaker 4: Africa and from China, and so it's everywhere, but Venezuela

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Speaker 4: has sort of been the choke point in terms of

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Speaker 4: just the numbers get really high when the surges of

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Speaker 4: Venezuelan come in.

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Speaker 2: And this is why immigration is going to be one

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Speaker 2: of the top issues this presidential election season. Thanks so much,

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Speaker 2: Leon for once again helping us to understand how complicated

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Speaker 2: immigration issues are. That's Leon Fresco of Holland and Knight.

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Speaker 2: In other legal news today, Donald Trump asked a New

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Speaker 2: York appeals court to move his hush money criminal trial

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Speaker 2: out of Manhattan and reverse his gag order in an

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Speaker 2: eleventh hour bid for delay just a week before the

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Speaker 2: trial is scheduled to start. At an emergency hearing today,

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Speaker 2: the former president's lawyers asked an appellate judge to postpone

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Speaker 2: the April fifteenth trial while they fight for a change

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Speaker 2: of venue. Trump's lawyer argued that he faces quote real

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Speaker 2: potential prejudice as a defendant in heavily democratic Manhattan. Citing

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Speaker 2: defense surveys and a review of media coverage. Trump Is

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Speaker 2: suggested on social media that the trial should be moved

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Speaker 2: to Staten Island, the only New York City borough he

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Speaker 2: won in twenty sixteen and twenty twenty. The appella chief

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Speaker 2: for the Manhattan District Attorney's Office, Stephen Woo, said the

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Speaker 2: question in this case is not whether a random poll

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Speaker 2: of New Yorkers from whatever neighborhood are able to be impartial.

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Speaker 2: It's about whether a trial court is able to select

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Speaker 2: a jury of twelve impartial jurors. He also blamed Trump

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Speaker 2: for stoking pre trial publicity with countless media appearances talking

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Speaker 2: about the facts of the case, the witnesses, and so on.

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Speaker 2: Justice Elizabeth Gonzalez noted at today's hearing that it didn't

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Speaker 2: involve an appeal per se, but the defense's desire for

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Speaker 2: an emergency stay, an order that would prevent the trial

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Speaker 2: from starting on time. She said she would review related

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Speaker 2: court filings and issue a decision quote at some point.

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Speaker 2: Coming up next on the Bloomberg Law Show, the First

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Speaker 2: Amendment shields a Broadway producer's casting decision from discrimination claims.

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Speaker 2: I'm June Grosse and you're listening to Bloomberg. He hadies

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Speaker 2: down is the Tony Award winning musical about the myth

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Speaker 2: of Orpheus and Euryticy, and it's now the latest example

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Speaker 2: of how the First Amendment can shield casting decisions from

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Speaker 2: claims of discrimination. Joining Me's employment law expert Anthony Ansee,

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Speaker 2: a partner at Pross Gower Rose Tony, tell us about

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Speaker 2: the facts here because it seemed like the producers of

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Speaker 2: this show were sort of between a rock and a

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Speaker 2: hard place when they realized that the chorus consisted of

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Speaker 2: all black actors and Orpheus, who rescues the chorus from

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Speaker 2: never ending labor, was a white actor.

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Speaker 1: So I think they were trying to balance some very

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Speaker 1: important issues on both sides, and interestingly, I think they

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Speaker 1: were being racially sensitive. That's perhaps the most ironic part

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Speaker 1: of this case. By making the decision that they made,

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Speaker 1: They in the initial configuration of the cast, had a

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Speaker 1: white actor on the one hand who was playing one

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Speaker 1: of the lead roles, and a number of other cast

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Speaker 1: members were all black, and the inadvertent message that apparently

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Speaker 1: was being inferred from that was one of a white

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Speaker 1: savior saving the black cast members, and that was what

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Speaker 1: sort of touched off the ultimate decision that they made

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Speaker 1: with respect to the casting.

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Speaker 2: So the producers fired a black actor in the chorus

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Speaker 2: and replaced her with a white actor, and she sued them.

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Speaker 2: What were the grounds of her suit?

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Speaker 1: She sued for a number of things, most particularly employment

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Speaker 1: discrimination because she said that she was in a protected

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Speaker 1: class as she is, that she was terminated because of

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Speaker 1: her race, and that in almost every other context, you

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Speaker 1: can imagine in an employment setting would probably be enough

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Speaker 1: to at least continue to pursue the case. Interestingly, with

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Speaker 1: those claims with respect to employment discriminations were dismissed at

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Speaker 1: the very earliest stage, at the pleadings stage.

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Speaker 2: So was it dismissed because the producers raised a First

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Speaker 2: Amendment defense and tell us about that right?

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Speaker 1: So what the court did is they very deliberately went

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Speaker 1: through first her allegations and concluded that she had at

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Speaker 1: least the makings of a successful lawsuit. As I said,

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Speaker 1: she was in a protected category. She says that her

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Speaker 1: race was a factor, if not the primary factor, in

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Speaker 1: the termination decision, and sought to pursue a claim for

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Speaker 1: discrimination based upon her race. The producers, however, argued in

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Speaker 1: response that they had a First Amendment right to make

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Speaker 1: the decision that they made, and in particular with respect

438
00:26:26,920 --> 00:26:32,360
Speaker 1: to casting a Broadway play, they said was an expression

439
00:26:32,840 --> 00:26:37,480
Speaker 1: of their First Amendment rights and they therefore were immune,

440
00:26:37,680 --> 00:26:40,960
Speaker 1: they argued from a discrimination claim such as the one

441
00:26:40,960 --> 00:26:44,480
Speaker 1: that was being brought by the former employee in this case,

442
00:26:44,920 --> 00:26:45,520
Speaker 1: and am Matt and.

443
00:26:45,520 --> 00:26:48,040
Speaker 2: Federal judge agreed with the producers as far as the

444
00:26:48,080 --> 00:26:52,720
Speaker 2: discrimination claim she dismissed the plaintiffs discrimination claims, but allowed

445
00:26:52,720 --> 00:26:55,159
Speaker 2: her retaliation claims to go forward.

446
00:26:55,560 --> 00:26:58,600
Speaker 1: I should offer a cautionary note here, and that is

447
00:26:58,640 --> 00:27:01,960
Speaker 1: that this arose obvis in the entertainment context for a

448
00:27:02,000 --> 00:27:06,359
Speaker 1: Broadway production. And there are a few other cases, and

449
00:27:06,400 --> 00:27:10,119
Speaker 1: I emphasize just a few, that have similarly arisen in

450
00:27:10,200 --> 00:27:15,280
Speaker 1: the entertainment industry, principally involving casting related decisions that are

451
00:27:15,320 --> 00:27:19,120
Speaker 1: made by employers. And most, if not all the cases

452
00:27:19,119 --> 00:27:21,520
Speaker 1: that I found, at least so far, and there's probably

453
00:27:21,520 --> 00:27:24,320
Speaker 1: not more than five or six of them, have endorsed

454
00:27:24,359 --> 00:27:29,320
Speaker 1: the producers or the directors, or the individuals who are

455
00:27:29,400 --> 00:27:32,520
Speaker 1: otherwise making the employment decisions. For example, there's been some

456
00:27:32,600 --> 00:27:36,359
Speaker 1: cases involving beauty contests and things like that, involving, for example,

457
00:27:36,400 --> 00:27:40,199
Speaker 1: transgender applicants to an all female beauty contest, And almost

458
00:27:40,200 --> 00:27:42,000
Speaker 1: all these cases come out the same way, and that

459
00:27:42,200 --> 00:27:45,080
Speaker 1: is that the courts that have reviewed these claims of

460
00:27:45,119 --> 00:27:49,439
Speaker 1: discrimination have come down on the side of the defendant

461
00:27:49,520 --> 00:27:52,240
Speaker 1: of the employer, saying that this is a very unique

462
00:27:52,400 --> 00:27:57,080
Speaker 1: situation in which there is creative expression that occurs, and

463
00:27:57,080 --> 00:28:00,440
Speaker 1: that creative expression in the form of casting is detected

464
00:28:00,440 --> 00:28:01,320
Speaker 1: by the First Amendment.

465
00:28:01,640 --> 00:28:04,000
Speaker 2: And you have to tell me about the case involving

466
00:28:04,000 --> 00:28:08,359
Speaker 2: the Bachelor, because that's such a popular, popular show appointment viewing.

467
00:28:09,119 --> 00:28:11,840
Speaker 1: Yes, And this most recent opinion, which came out just

468
00:28:11,960 --> 00:28:14,440
Speaker 1: on March seventh, so it's brand new, it does rely

469
00:28:15,160 --> 00:28:18,359
Speaker 1: to some extent on the so called Bachelor opinion, which

470
00:28:18,520 --> 00:28:22,600
Speaker 1: is from a federal court in Tennessee in twenty twelve,

471
00:28:22,640 --> 00:28:25,480
Speaker 1: so it actually is quite a while ago. And that

472
00:28:25,600 --> 00:28:30,240
Speaker 1: case involved two black men who claimed that they sought

473
00:28:30,280 --> 00:28:34,560
Speaker 1: to but were not permitted, to be on the Bachelor

474
00:28:34,960 --> 00:28:37,919
Speaker 1: show in twenty twelve. And they said that the reason

475
00:28:38,160 --> 00:28:40,960
Speaker 1: was that they were black, and they noted in their

476
00:28:41,040 --> 00:28:44,040
Speaker 1: lawsuit that up to that point, at least all of

477
00:28:44,080 --> 00:28:48,880
Speaker 1: the contestants had been white. And they went further and

478
00:28:48,880 --> 00:28:52,880
Speaker 1: said that the producers were refusing to cast non white

479
00:28:52,920 --> 00:28:56,480
Speaker 1: bachelors and bachelorettes by the way, to avoid the quote

480
00:28:56,560 --> 00:29:00,760
Speaker 1: controversy stemming from an interracial romance, and to convey the

481
00:29:00,800 --> 00:29:04,560
Speaker 1: message quote that only all white relationships are desirable and

482
00:29:04,640 --> 00:29:09,520
Speaker 1: worthy of national attention. Now, not surprisingly, the producers vehemently

483
00:29:09,800 --> 00:29:13,840
Speaker 1: and categorically denied that those were the messages that they

484
00:29:13,880 --> 00:29:17,360
Speaker 1: sought to send or that those were the motivating factors

485
00:29:17,400 --> 00:29:20,440
Speaker 1: behind the decisions that had been made, but the court

486
00:29:20,560 --> 00:29:23,880
Speaker 1: said it didn't matter. The court said, again using the

487
00:29:23,920 --> 00:29:28,800
Speaker 1: First Amendment affirmative defense that played out in the Hadestown case,

488
00:29:29,400 --> 00:29:31,920
Speaker 1: that even if let's assume for a moment, because that's

489
00:29:31,920 --> 00:29:34,480
Speaker 1: what happens on emotion to dismiss, you assume everything that's

490
00:29:34,520 --> 00:29:37,440
Speaker 1: being alleged is true. And then the court asks itself

491
00:29:37,480 --> 00:29:40,080
Speaker 1: the question, even if everything that is being alleged is true,

492
00:29:40,560 --> 00:29:42,880
Speaker 1: is that a basis to continue with this lawsuit? So

493
00:29:43,280 --> 00:29:46,120
Speaker 1: for purpose of promotion to dismiss. In the Bachelor case,

494
00:29:46,280 --> 00:29:49,480
Speaker 1: the court assumed that the producers may have had those

495
00:29:49,840 --> 00:29:54,360
Speaker 1: unsavory points of view with respect to interracial romance and

496
00:29:54,400 --> 00:29:57,360
Speaker 1: with respect to all white relationships and so on, and

497
00:29:57,400 --> 00:29:59,960
Speaker 1: said that even if that were the case, it wouldn't matter.

498
00:30:00,360 --> 00:30:04,640
Speaker 1: That this is still expression of a creative nature that

499
00:30:04,760 --> 00:30:08,240
Speaker 1: is being exercised by the producers, and as a result

500
00:30:08,280 --> 00:30:12,400
Speaker 1: of that, the inquiry stops. That the First Amendment basically

501
00:30:12,440 --> 00:30:16,080
Speaker 1: stands in the way of a discrimination claim by someone

502
00:30:16,120 --> 00:30:20,479
Speaker 1: who is claiming that there was some invidious discrimination behind

503
00:30:20,760 --> 00:30:21,640
Speaker 1: the decision making.

504
00:30:22,280 --> 00:30:28,440
Speaker 2: This casting claim was even used with regard to television news,

505
00:30:28,880 --> 00:30:32,440
Speaker 2: which I found really interesting. I think most people know that,

506
00:30:32,760 --> 00:30:36,680
Speaker 2: in general, the decisions to hire TV news reporters or

507
00:30:36,720 --> 00:30:39,760
Speaker 2: in this case, whether people are based in part on

508
00:30:39,960 --> 00:30:40,680
Speaker 2: how they look.

509
00:30:41,080 --> 00:30:44,120
Speaker 1: In California, these kinds of cases, and again there's just

510
00:30:44,200 --> 00:30:48,400
Speaker 1: a smattering of them, very few cases involving these kinds

511
00:30:48,440 --> 00:30:52,480
Speaker 1: of claims and these kinds of defenses, at least in

512
00:30:52,520 --> 00:30:55,920
Speaker 1: the published record, but they are dealt with slightly differently

513
00:30:55,920 --> 00:30:58,680
Speaker 1: in California. We actually in California have something called the

514
00:30:58,720 --> 00:31:02,560
Speaker 1: Anti SLAP stat which is kind of acronym's gone wild,

515
00:31:03,000 --> 00:31:05,800
Speaker 1: and slap is spelled with two p's, so it's the

516
00:31:05,840 --> 00:31:12,200
Speaker 1: anti slapp statue, and that stands for strategic lawsuit against

517
00:31:12,200 --> 00:31:17,800
Speaker 1: public participation. So yeah, I think it's an acronym in

518
00:31:17,840 --> 00:31:19,600
Speaker 1: search of words and not the other way around. But

519
00:31:19,640 --> 00:31:22,000
Speaker 1: in any event, what it is is a means by

520
00:31:22,040 --> 00:31:26,400
Speaker 1: which a defendant who is making a casting decision, as

521
00:31:26,440 --> 00:31:31,440
Speaker 1: you mentioned in one case involving an on air weather reporter,

522
00:31:32,000 --> 00:31:36,800
Speaker 1: is able to essentially dismiss the claim that's brought alleging discrimination,

523
00:31:37,280 --> 00:31:39,880
Speaker 1: and the basis for dismissal is this first amendment. The

524
00:31:39,880 --> 00:31:43,360
Speaker 1: same kind of first Amendment defense that we've been talking about.

525
00:31:43,560 --> 00:31:46,680
Speaker 1: So that's what happened in this case. An older white

526
00:31:46,680 --> 00:31:53,160
Speaker 1: male challenged decision that was made to instead of hiring him,

527
00:31:53,920 --> 00:32:02,160
Speaker 1: hiring younger, more attractive female weather reporters, and he alleged

528
00:32:02,320 --> 00:32:06,560
Speaker 1: that that was discrimination based upon his age and his gender.

529
00:32:07,360 --> 00:32:10,680
Speaker 1: And he said that because younger attractive female form being

530
00:32:10,800 --> 00:32:14,120
Speaker 1: hired as on air weather reporters, that obviously had a

531
00:32:14,160 --> 00:32:18,600
Speaker 1: discriminatory effect and precluded him from being hired. And again

532
00:32:18,640 --> 00:32:21,880
Speaker 1: this same analysis was used in the case. The court

533
00:32:22,400 --> 00:32:26,520
Speaker 1: indulged the possibility that that was in fact what was

534
00:32:26,560 --> 00:32:31,360
Speaker 1: going on, that the local weather reporter was being hired

535
00:32:31,400 --> 00:32:35,480
Speaker 1: based upon gender, or based upon age or attractiveness, what

536
00:32:35,600 --> 00:32:40,640
Speaker 1: have you. And the court said, nonetheless, the television station

537
00:32:41,120 --> 00:32:45,600
Speaker 1: in that case was involved in quote expressive activity under

538
00:32:45,600 --> 00:32:49,800
Speaker 1: the First Amendment, and that such selection choices were quote

539
00:32:49,920 --> 00:32:53,280
Speaker 1: essentially casting decisions. We don't typically think of the weather

540
00:32:53,360 --> 00:32:57,000
Speaker 1: reporter as a casting decision, but it's not very difficult

541
00:32:57,040 --> 00:32:59,120
Speaker 1: to imagine that because it does have some of the

542
00:32:59,120 --> 00:33:05,040
Speaker 1: same characters. And therefore, once again the employer, the producer,

543
00:33:05,160 --> 00:33:09,400
Speaker 1: under these circumstances was immune from this discrimination claim that

544
00:33:09,520 --> 00:33:13,480
Speaker 1: was being alleged by the prospective weather reporter.

545
00:33:13,960 --> 00:33:17,120
Speaker 2: So do you think that all these cases mean that

546
00:33:18,240 --> 00:33:22,920
Speaker 2: you know, whether it's film or theater or TV, that

547
00:33:23,000 --> 00:33:25,959
Speaker 2: producers can cast whomever they want in a roll and

548
00:33:26,240 --> 00:33:31,240
Speaker 2: know that if discrimination claims are filed, they're going to win.

549
00:33:31,720 --> 00:33:33,600
Speaker 1: I think that we're close to that if it is

550
00:33:33,840 --> 00:33:38,640
Speaker 1: genuinely a casting related decision, and it is genuinely connected

551
00:33:38,680 --> 00:33:41,760
Speaker 1: to some kind of creative expression, and I know those

552
00:33:41,800 --> 00:33:45,760
Speaker 1: are rubbery words, and it's probably going to be the

553
00:33:45,800 --> 00:33:48,120
Speaker 1: case if it hasn't already been the case, and maybe

554
00:33:48,120 --> 00:33:50,840
Speaker 1: some cases that we've not yet seen published that those

555
00:33:50,920 --> 00:33:54,720
Speaker 1: might be inapplicable in certain decisions. But I think that

556
00:33:54,800 --> 00:33:58,840
Speaker 1: anybody who is either thinking of suing an entertainment company

557
00:33:59,240 --> 00:34:02,440
Speaker 1: and who might be subject to some form of casting

558
00:34:02,560 --> 00:34:06,120
Speaker 1: or some form of selection by the producer or by

559
00:34:06,160 --> 00:34:09,359
Speaker 1: the entertainment related company, I think is going to have

560
00:34:09,719 --> 00:34:13,960
Speaker 1: tougher odds in being able to proceed with a lawsuit. Conversely,

561
00:34:14,000 --> 00:34:16,840
Speaker 1: I think that anybody who's defending as I do defend

562
00:34:17,280 --> 00:34:21,120
Speaker 1: employers many within the entertainment industry, if there is something

563
00:34:21,200 --> 00:34:26,480
Speaker 1: related to expression of creativity or casting, this should be

564
00:34:26,520 --> 00:34:30,480
Speaker 1: a first stop consideration and I think, obviously there's going

565
00:34:30,520 --> 00:34:33,040
Speaker 1: to be limits to that that probably would not apply

566
00:34:33,200 --> 00:34:36,640
Speaker 1: to an in house lawyer at a studio or at

567
00:34:36,640 --> 00:34:40,720
Speaker 1: a Broadway production, or an accountant. It probably wouldn't apply

568
00:34:40,800 --> 00:34:44,360
Speaker 1: to somebody who's a member of the crew who's not

569
00:34:44,560 --> 00:34:48,000
Speaker 1: necessarily going to be in any way exposed to the

570
00:34:48,040 --> 00:34:50,440
Speaker 1: public in terms of the performance. So I think, although

571
00:34:50,440 --> 00:34:54,880
Speaker 1: this is interesting and categorically uncharacteristic, I guess of what

572
00:34:54,920 --> 00:34:58,680
Speaker 1: we typically think of in terms of discrimination lawsuits, it

573
00:34:58,760 --> 00:35:01,759
Speaker 1: is a very powerful defense, very narrow area within the

574
00:35:01,840 --> 00:35:05,759
Speaker 1: entertainment industry, and one that I think you don't have

575
00:35:05,800 --> 00:35:08,760
Speaker 1: to look much further than I went back and checked.

576
00:35:09,320 --> 00:35:12,239
Speaker 1: In my view of The Godfather, I think the motion

577
00:35:12,320 --> 00:35:14,840
Speaker 1: picture movie from the nineteen seventies would be much different

578
00:35:15,480 --> 00:35:19,879
Speaker 1: if the casting decisions had been different. And we all

579
00:35:19,920 --> 00:35:21,920
Speaker 1: know it's a matter of public record that some of

580
00:35:21,960 --> 00:35:26,960
Speaker 1: the most influential producers of that film preferred some of

581
00:35:26,960 --> 00:35:32,520
Speaker 1: the leading actors of the day, including Laurence Olivier, George C. Scott,

582
00:35:32,560 --> 00:35:38,359
Speaker 1: and even Danny Thomas as the Godfather Beato Corleone, over

583
00:35:38,960 --> 00:35:42,560
Speaker 1: Marlon Brando. And it was really only the very strong

584
00:35:43,040 --> 00:35:48,000
Speaker 1: creative decision and the force of personality, and of course

585
00:35:48,040 --> 00:35:51,240
Speaker 1: the influence that Francis Ford Coppola had as the director

586
00:35:51,280 --> 00:35:54,640
Speaker 1: that he was able to make sure that his singular choice,

587
00:35:54,680 --> 00:35:57,520
Speaker 1: Marlon Brando, was chosen for that role. But it doesn't

588
00:35:57,560 --> 00:35:59,600
Speaker 1: take a lot of imagination to think what would that

589
00:35:59,719 --> 00:36:02,719
Speaker 1: motion and picture have been like if any of those individuals,

590
00:36:02,760 --> 00:36:06,760
Speaker 1: all fine actors had been cast and not the iconic

591
00:36:07,000 --> 00:36:09,480
Speaker 1: Marlon Brando or al Pacino.

592
00:36:09,840 --> 00:36:13,160
Speaker 2: Because Francis Ford Coppla had a fight tooth and nail

593
00:36:13,239 --> 00:36:14,720
Speaker 2: to get al Pacino in that.

594
00:36:14,680 --> 00:36:18,040
Speaker 1: Role, that is correct. There's been a lot of post

595
00:36:18,120 --> 00:36:22,560
Speaker 1: Godfather history, including a relatively recent television dramatization about the

596
00:36:22,640 --> 00:36:24,960
Speaker 1: casting and the production of the film that talked a

597
00:36:25,000 --> 00:36:27,359
Speaker 1: lot about that and that mister Baccino was on thin

598
00:36:27,480 --> 00:36:29,680
Speaker 1: ice and the producers very much did not want him.

599
00:36:29,680 --> 00:36:32,280
Speaker 1: And of course you can't imagine anyone being Michael corleone

600
00:36:32,320 --> 00:36:33,240
Speaker 1: other than al Pacina.

601
00:36:33,560 --> 00:36:36,480
Speaker 2: You really can't at this point. Thanks so much, Tony

602
00:36:36,760 --> 00:36:40,520
Speaker 2: for your Godfather insights as well as your legal insights.

603
00:36:40,760 --> 00:36:43,360
Speaker 2: That's Anthony on Seedi of Pross Cower Rose