Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.
Speaker 2: The Biden administration says that Texas's sweeping immigration law, known
Speaker 2: as SB four, is unconstitutional because it violates the federal
Speaker 2: government's sole authority to set immigration policy. The law authorizes
Speaker 2: state officials to arrest, detain, and deport non citizens who
Speaker 2: enter the country illegally, but it's only gone into effect
Speaker 2: for a grand total of nine hours. That's because it's
Speaker 2: been meandering through the federal courts, including a trip to
Speaker 2: the Supreme Court, and in the law's second appearance at
Speaker 2: the Fifth Circuit Court of Appeals, the Texas Elicitor General
Speaker 2: Lloyd Nielsen made a remarkable admission, maybe the law goes
Speaker 2: too far.
Speaker 3: What Texas has done here is they have looked at
Speaker 3: the Supreme Court's president and they have tried to develop
Speaker 3: a statute that goes up to the line of court
Speaker 3: precedent but allows Texas to protect the border. Now, to
Speaker 3: be fair, maybe Texas went too far, and that's the
Speaker 3: question the Sport's going to have to decide. But that's
Speaker 3: the context of which we are here. Texas has looked
Speaker 3: at the Supreme Court precedent and the laws that Congress
Speaker 3: has enacted and has tried to develop a law that
Speaker 3: goes up to the edge, but no further.
Speaker 2: It was before the same panel that on March twenty six,
Speaker 2: by a two to one vote, blocked the law temporarily
Speaker 2: in an opinion by Chief Judge Priscilla Richmond, who wrote
Speaker 2: that the law likely interferes with federal immigration policy, but
Speaker 2: at oral arguments, the Solicitor General now claimed that Texas
Speaker 2: doesn't deport anybody. He said police would take migrants to
Speaker 2: a port of entry controlled by the federal government, leaving
Speaker 2: Chief Judge Richmond to question the point of the law.
Speaker 2: You can take let's say, one hundred and fifty people
Speaker 2: at a time back to Eagle.
Speaker 3: Pass, Yes, or some other port of entry, Yes.
Speaker 2: Your honor, and then the federal government's going to process him.
Speaker 3: Is that how you yes, your honor, And that's it's
Speaker 3: going to.
Speaker 4: Say, here's your notice or whatever you can stay in.
Speaker 2: And so then Texas, what's the status?
Speaker 4: What has the statute accomplished?
Speaker 2: I'm just curious. Yes, joining me is immigration law expert
Speaker 2: Leon Fresco, a partner at Holland and Knight and a
Speaker 2: former Justice Department official. Leon Tell us about the litigation
Speaker 2: over this law.
Speaker 4: This case has gone through quite the long and winding road.
Speaker 4: To use the Beatles reference, where it starts in the
Speaker 4: District Court, and the District Court enjoins the law very
Speaker 4: simply as being in contravention to the Supreme Court's twenty
Speaker 4: twelve decision in Arizona. Then the Fifth Circuit actually lifts
Speaker 4: the same momentarily and says that the law can go
Speaker 4: into effect, and then that goes to the Supreme Court,
Speaker 4: who then says, hey, wait a second, there actually wasn't
Speaker 4: a real ruling here with regard to the merits of
Speaker 4: whether the state should be lifted or not, so we're
Speaker 4: not going to get involved in reviewing what is a
Speaker 4: de facto decision that just says, go to the Supreme
Speaker 4: Court and figure that out. So when they kicked it
Speaker 4: back to the Fifth Circuit, the Fifth Circuit, paneled two
Speaker 4: to one, actually put in a temporary stay. And then
Speaker 4: what happened is while the law is temporarily saved, there
Speaker 4: is now an oral argument that occurred on whether that
Speaker 4: state should be extended. But at the moment, the law
Speaker 4: is not in effect and it stayed pursuing to a
Speaker 4: temporary state, and what.
Speaker 2: Would the law allow Texas to do.
Speaker 4: The law would allow Texas to basically create the facto
Speaker 4: deportation events, essentially, because while Texas cannot actually deport people
Speaker 4: to Mexico, what they would do is if they apprehended
Speaker 4: people who were unlawfully in Texas, they would then take
Speaker 4: those people, transport them to the Mexico Texas border and
Speaker 4: say you have two choices. Either go into Mexico or
Speaker 4: if we catch you again, you will be arrested and
Speaker 4: you will actually be charged with a felony of remaining
Speaker 4: in the United States or re entering the United States,
Speaker 4: depending on what you do after you've already been charged
Speaker 4: with the misdemeanor. And so that was placed under great
Speaker 4: scrutiny in this oral argument because Texas tried to recast
Speaker 4: that as no, we're not actually creating these self deportations,
Speaker 4: we're just going to give them to the federal government
Speaker 4: and we're cooperating with them so that they can do it,
Speaker 4: to which the court said, well, guess what the federal
Speaker 4: government's doing you and they're saying they don't want this cooperation,
Speaker 4: So how can you say that's what you're doing. And
Speaker 4: this is where there was some complications in the oral argument.
Speaker 2: Yeah, it was kind of surprising that the Czexas Solicitor
Speaker 2: General said that the law was crafted in a way
Speaker 2: that goes up to the line of Supreme Court President,
Speaker 2: and he admitted that maybe across.
Speaker 4: The line, right, he was basically trying to get what's
Speaker 4: known as a severance doctrine, where the illegal parts of
Speaker 4: the law could be severed away while still keeping the
Speaker 4: legal parts of the law. But the problem is, it's
Speaker 4: not really clear what's legal under the Arizona case. The
Speaker 4: only thing that Arizona permits is for state officials to
Speaker 4: check on someone's status and report them die. So, yes,
Speaker 4: they can do that, and they've been doing that, and
Speaker 4: they can continue to do that. But with regard to
Speaker 4: actually arresting people and charging them for a crime, the
Speaker 4: Arizona Supreme Court decision actually already says that is illegal.
Speaker 4: And then when you add this second component of actually
Speaker 4: taking human beings back to the Mexico US border line
Speaker 4: and telling them and you have two options to port
Speaker 4: yourself or face four criminal charges, that would be completely
Speaker 4: in contravention of the Arizona Supreme Court case.
Speaker 2: Let's say Texas does this will Mexico take those people back?
Speaker 4: Well, this is where Mexico has said that it's not
Speaker 4: going to cooperate with any state or local deportation efforts.
Speaker 4: It will only cooperate with the federal government. Now what's
Speaker 4: not clear is what does that mean. So Mexico could
Speaker 4: say if the individuals are crossing the ports of entry,
Speaker 4: they could say, we're not going to let you cross
Speaker 4: the ports of entry. But if Texas basically scares people
Speaker 4: into recrossing the river back into Mexico, not clear what
Speaker 4: Mexico would do there. Are they going to try to
Speaker 4: grab them and push people back into the US. That
Speaker 4: can create a horrible you know, human ping pong essentially
Speaker 4: where you have forces taking people and pushing them back
Speaker 4: and forth. So it's not clear what would happen realistically
Speaker 4: in that Todario. But in any case, Texas what it's
Speaker 4: really trying to do is use fear to deter people
Speaker 4: a from not even coming into Texas in the first place,
Speaker 4: instead going into California or Arizona. But also if they
Speaker 4: do go into Texas, then to go away and either
Speaker 4: leave Texas or go into Bangsico.
Speaker 2: Did they even discuss in the oral arguments Texas's claim
Speaker 2: that their law mayrors federal law and the federal government
Speaker 2: divide administration isn't enforcing federal law, so they get to.
Speaker 4: Well, correct, that's the claim of Texas. They're basically making
Speaker 4: two claims. One is that their law mirror's federal law,
Speaker 4: like you said, and the federal government isn't enforcing it,
Speaker 4: so they should get the opportunity to enforce it. And
Speaker 4: one of the judges who used to be the former
Speaker 4: Texas solicitor General is now in the Fifth Circuit who
Speaker 4: was appointed by President Trump. He had a lot of
Speaker 4: sympathy for that and certainly pushing the federal government on
Speaker 4: this lack of enforcement issue. But at the end of
Speaker 4: the day, the point is it's very difficult to say
Speaker 4: you're cooperating with the federal effort when the federal government,
Speaker 4: who gets different in these proceedings, says, and I think
Speaker 4: successfully and persuasively to the other two judges, that this
Speaker 4: isn't contravention of what the federal government is trying to do.
Speaker 4: They don't want this assistant. They view this assistant as illegal.
Speaker 4: It puts the judges in a very difficult position as
Speaker 4: to whether it will allow this to continue.
Speaker 2: So you had the Trump appointee asking tough questions of
Speaker 2: the federal government's attorney, and then you had one judge
Speaker 2: who had ruled against Texas in this matter before didn't
Speaker 2: say much, but then the Chief Judge had a lot
Speaker 2: to say, right.
Speaker 4: And the Chief Judge is actually appointed by George Bush,
Speaker 4: and she's the Chief Judge of the Court, and was
Speaker 4: actually in the past considered a conservative who might potentially
Speaker 4: be on the Supreme Court. And she was very out
Speaker 4: of it about how difficult it was to square the
Speaker 4: circle with regard to the claims that the State of
Speaker 4: Texas was making and how it was going to actually
Speaker 4: implement this law if it was getting all of this
Speaker 4: resistance from both Mexico and from the federal government. Because
Speaker 4: at the end of the day, if the states were
Speaker 4: going to take the matters into their own hands, how
Speaker 4: would that actually work as a functional matter when this
Speaker 4: has so much of a foreign policy nexus into what's
Speaker 4: being negotiated between the United States and Mexico.
Speaker 2: After this Fifth Circuit rules, what happens next in.
Speaker 4: The case, Well, then it can be appealed again to
Speaker 4: the Supreme Court, where the Supreme Court would decide whether
Speaker 4: to uphold the Texas law or whether to continue to
Speaker 4: say that the Texas law is unconstitutional. It's likely the
Speaker 4: Fifth Circuit that here is actually likely to say that
Speaker 4: the Texas law is unconstitutional. Perhaps Texas will try to
Speaker 4: get a momentary victory by going on bank in the
Speaker 4: Fifth Circuit for the full panel, which is a more
Speaker 4: conservative court, but regardless, even if they get the temporary victory,
Speaker 4: he will ultimately go to the Supreme Court. And even
Speaker 4: though there are three justices that are unaccounted for, you
Speaker 4: have Kavanaugh, you have Cony Barrett, and you have Gorsas
Speaker 4: who are unaccounted for and could vote to overturn the
Speaker 4: Arizona law, along with Justices Thomas and Alito who voted
Speaker 4: during Arizona on the side of Arizona. So perhaps the
Speaker 4: Flights could vote to overturn the Arizona decision, but it
Speaker 4: seems unlikely that that would happen because again of these
Speaker 4: ramifications of how a state then ends up interacting with
Speaker 4: the Mexican government with regard to this act of basically
Speaker 4: self supporting people back into Mexico who oftentimes will not
Speaker 4: even be Mexican, will be from Venezuela or Cuba or
Speaker 4: some other place where Mexico has no reason to take
Speaker 4: people back into Mexico.
Speaker 2: Yeah, and the Chief Judge did mention that Arizona case,
Speaker 2: saying the laws on the books. So we'll see when
Speaker 2: that ruling comes out. Stay with me. Leon. Coming up next,
Speaker 2: I'll continue this conversation with Leon Fresco of Holland and Knight.
Speaker 2: The Texas governor journeys to New York City, but not
Speaker 2: by bus. It wasn't by bus, but Texas Governor Greg
Speaker 2: Abbott did make the trip to New York City to
Speaker 2: headline the New York Republican Party's annual gala last Thursday,
Speaker 2: and Abbot said he had no plans to let up
Speaker 2: on busing migrants to the sanctuary city, continuing his war
Speaker 2: of words with the Mayor Eric Adams.
Speaker 5: The complaining by Mayor Adams, there's nothing short than stunning.
Speaker 5: What he has is a tiny fraction of what Texas
Speaker 5: gets every single day.
Speaker 2: The governor did not take the mayor up on his
Speaker 2: offer to spend a night in one of the city's
Speaker 2: migrant shelters. I've been talking to immigration law expert Leon
Speaker 2: Fresco of Holland and Knight Leon. Immigration is going to
Speaker 2: be one of the top issues in the presidential campaign.
Speaker 2: And we've talked before about hints from the Biden administration
Speaker 2: that there might be an executive action by the president.
Speaker 2: Is there any more talk or thought by the Biden
Speaker 2: administration of taking some kind of executive action in light
Speaker 2: of the fact that they couldn't get the immigration bill
Speaker 2: passed well.
Speaker 4: The Biden administration is certainly continuing this process. They are
Speaker 4: really engaging in a lot of debate whether it's better
Speaker 4: to place a policy in effect that they know will
Speaker 4: be enjoyed by the court simply so that they can
Speaker 4: say they tried, or whether they should try to engage
Speaker 4: in a policy that might not be as effective dominant
Speaker 4: if you looked at it on its face, but could
Speaker 4: actually survive judicial scrutiny. But the interesting news is that
Speaker 4: when March ended, March was actually as a hair lower
Speaker 4: than people were expecting with regards to border crossings. And
Speaker 4: that's because Mexico has agreed along with the Biden administration
Speaker 4: to help the Bide administration, especially with regards to Venezuelan.
Speaker 4: So they are detaining Venezuelans, they are preventing Venezuelan from
Speaker 4: entering the United States, and they're actually removing Venezuelans back
Speaker 4: into Venezuela. And so this is having some nominal but
Speaker 4: yet somewhat appreciable effect on the border with regards to
Speaker 4: numbers crossing. And so only if those numbers were to
Speaker 4: get back to the rates that were worried about, I
Speaker 4: think is when you'd see these policies potentially being promulgated.
Speaker 2: Leam. We've talked before about many migrants who are arrested
Speaker 2: and then released. But in the case of eight Venezuelan
Speaker 2: migrants who were illegally squatting illegally squatting in a home
Speaker 2: in New York and they were arrested and found with
Speaker 2: drugs and guns, they were released, but I seem to
Speaker 2: have gotten involved. Then Ice then arrested or re arrested
Speaker 2: three of them and lodged detainer requests for four others
Speaker 2: being held in local custody.
Speaker 4: Yes, so depending on where the Venezuelans cases, and some
Speaker 4: of the Venezuelans who were apprehended in New York actually
Speaker 4: already had final deportation orders and the problem was Venezuela
Speaker 4: won't take those individuals back and so the US government
Speaker 4: needs to decide what it's going to do with those
Speaker 4: But some of those individuals actually hadn't even had their
Speaker 4: process finished, because what happened was they were in the
Speaker 4: middle of the deportation process and the individuals absconded and
Speaker 4: didn't show up at their hearings. And so in those situations,
Speaker 4: I have said, look what the City of New York
Speaker 4: is done with. Whatever criminal penalties are going to be
Speaker 4: provided to those individuals, then we want them so that
Speaker 4: we can try to place them in deportation proceeding. Now,
Speaker 4: the ultimate problem with all of these Venezuelans is going
Speaker 4: to be what happens next. If Venezuela will not accept
Speaker 4: those individuals, what is the federal government willing to do.
Speaker 4: Is it willing to sanction Venezuela in some way that
Speaker 4: will actually be meaningful to Venezuela so that it will
Speaker 4: start accepting individuals. Will it actually try to do something
Speaker 4: different in terms of parrots to make it more attractive
Speaker 4: for Venezuela to accept people but that's the larger issue.
Speaker 4: Or will it try to find some country who will
Speaker 4: accept Venezuelans in exchange for some favor that the US
Speaker 4: government is willing to do, perhaps with regard to foreign
Speaker 4: aid or trade or something else. But those are the
Speaker 4: options that are available to the federal government. But this
Speaker 4: Venezuelan issue is going to continue, ne you to be
Speaker 4: complicated so long as Venezuela is not accepting people that
Speaker 4: the United States is trying to remove there.
Speaker 2: So is that why Venezuelans are in the spotlight because
Speaker 2: the country's not accepting people back or are there other
Speaker 2: reasons why?
Speaker 4: Well, there's a lot of issues going on at one time. One,
Speaker 4: obviously there's a mass exodus of Venezuelans into the United States. Second,
Speaker 4: there are now appearing to be some efforts with regard
Speaker 4: to Venezuela with sort of emptying out some of the
Speaker 4: undesirables from Venezuela in a way similar to what Fidel
Speaker 4: Castro did in Cuba in the nineteen eighties to make
Speaker 4: Venezuelan to sort of alleviate the social pressures on Venezuela.
Speaker 4: But those pressures now get transferred to the United States
Speaker 4: as some of those individuals arrived who are not necessarily
Speaker 4: as safe as some others. And so I think that's
Speaker 4: what you're seeing, is you're seeing the confluence of a
Speaker 4: different group of Venezuelans entering into the United States, addition
Speaker 4: to the fact that those individuals then can't be removed
Speaker 4: back into Venezuela. And so this is something, like I said,
Speaker 4: the last time you saw this was in the nineteen eighties,
Speaker 4: and when this happened then it was destabilizing the quite
Speaker 4: some number of places until those communities could figure out
Speaker 4: what they were going to do.
Speaker 2: Let's say Ice has some Venezuela's in custody, what are
Speaker 2: its options.
Speaker 4: So what happens is there's an opinion from the Supreme
Speaker 4: Court that actually was post this nineteen eighties issue, which
Speaker 4: was called Zavidas. And in that opinion, what they said was,
Speaker 4: if you can't deport someone and you know you can't
Speaker 4: support someone, you've tried for six months while you've had
Speaker 4: them in detention and you can't support them, you have
Speaker 4: to release them back into society under an order of
Speaker 4: supervision where they have to report and check in, unless
Speaker 4: you can show that there's such a danger to society
Speaker 4: that you can indefinitely detain them. And so the federal
Speaker 4: government has been very concerned about trying to stretch out
Speaker 4: the constitutionality of whether it can indefinitely detain people, but basically,
Speaker 4: anytime someone breaks their conditions, you can place them back
Speaker 4: in detention for six months at a time, but that's
Speaker 4: very difficult, and so if you're going to be tracking
Speaker 4: people and they're going to be committing crimes in between
Speaker 4: the time they're in immigration detention, that's the sort of
Speaker 4: thing that the public doesn't like to year about when
Speaker 4: the federal government's doing that. They don't understand what's going on.
Speaker 4: But the problem is there is the Supreme Court decision,
Speaker 4: which you know, understandably, you don't want to have someone
Speaker 4: in detention for fifty years because their government won't accept them.
Speaker 4: And all they might have done is commit something like
Speaker 4: a shoplifting offense, and now they're suddenly in prison for
Speaker 4: fifty years. So you have to be careful. There obviously
Speaker 4: is a balance, but here the balance has led to
Speaker 4: a situation where there's a little bit of a lack
Speaker 4: of safety and stability some places because there are all
Speaker 4: these Venezuelans who are being caught doing things in New
Speaker 4: York City and they can't be detained because there's a
Speaker 4: cap to how long they can be detained. Due to
Speaker 4: the fact that they can't actually be removed back to Venezuela.
Speaker 2: It is so complicated because you're right, you read the
Speaker 2: stories and you go, well, why are they still here?
Speaker 2: They've been in and out of jail and continue committing crimes.
Speaker 2: You know, why isn't something being done? I mean, it's
Speaker 2: just so complicated and confused.
Speaker 4: I mean, you could, you could conceivably And this is
Speaker 4: the thing nobody's ever tried to do, is have an
Speaker 4: aggressive action against some country like Venezuela and say, look,
Speaker 4: we are by force. And this is the kind of
Speaker 4: thing Trump has talked about, we are by force bringing
Speaker 4: people here, and go ahead, shoot out us. You know,
Speaker 4: try whatever you're gonna try, but we're gonna We're gonna
Speaker 4: still deport these people. We don't care. But obviously something
Speaker 4: like that hasn't yet been dried in American history, so
Speaker 4: it's not clear. Maybe President Trump would try that, or
Speaker 4: maybe with scare a country to accepting people under the
Speaker 4: threat that he's going to try these forced deportations, but
Speaker 4: it would be considered an act of aggression because you're
Speaker 4: invading a country's territorial boundaries without their permissions.
Speaker 2: And the numbers in March were better, but still incredibly high.
Speaker 4: Right, It's still very high compared to past years, that
Speaker 4: past decades, but compared to this recent last twelve months.
Speaker 4: March was a bit of a break from what people
Speaker 4: expected was going to happen in March, and that's because
Speaker 4: all of the Venezuelas people thought were coming were not
Speaker 4: coming because Mexico was stopping them. And Venezuela has agreed
Speaker 4: to allow deportations from Mexico, even if it hasn't agreed
Speaker 4: to allow deportations from the United States.
Speaker 2: The majority of migrants, what country are they from?
Speaker 4: Well, people are still coming from all over the world,
Speaker 4: and Mexico actually still is the highest number in terms
Speaker 4: of just your number. But they're coming from Cuba, they're
Speaker 4: coming from Haiti, They're coming from Venezuela. They're coming from Nicaragua,
Speaker 4: They're coming from Central America, savad or Juatemala, there is
Speaker 4: they're coming from Ecuador. They're coming now from parts of
Speaker 4: Africa and from China, and so it's everywhere, but Venezuela
Speaker 4: has sort of been the choke point in terms of
Speaker 4: just the numbers get really high when the surges of
Speaker 4: Venezuelan come in.
Speaker 2: And this is why immigration is going to be one
Speaker 2: of the top issues this presidential election season. Thanks so much,
Speaker 2: Leon for once again helping us to understand how complicated
Speaker 2: immigration issues are. That's Leon Fresco of Holland and Knight.
Speaker 2: In other legal news today, Donald Trump asked a New
Speaker 2: York appeals court to move his hush money criminal trial
Speaker 2: out of Manhattan and reverse his gag order in an
Speaker 2: eleventh hour bid for delay just a week before the
Speaker 2: trial is scheduled to start. At an emergency hearing today,
Speaker 2: the former president's lawyers asked an appellate judge to postpone
Speaker 2: the April fifteenth trial while they fight for a change
Speaker 2: of venue. Trump's lawyer argued that he faces quote real
Speaker 2: potential prejudice as a defendant in heavily democratic Manhattan. Citing
Speaker 2: defense surveys and a review of media coverage. Trump Is
Speaker 2: suggested on social media that the trial should be moved
Speaker 2: to Staten Island, the only New York City borough he
Speaker 2: won in twenty sixteen and twenty twenty. The appella chief
Speaker 2: for the Manhattan District Attorney's Office, Stephen Woo, said the
Speaker 2: question in this case is not whether a random poll
Speaker 2: of New Yorkers from whatever neighborhood are able to be impartial.
Speaker 2: It's about whether a trial court is able to select
Speaker 2: a jury of twelve impartial jurors. He also blamed Trump
Speaker 2: for stoking pre trial publicity with countless media appearances talking
Speaker 2: about the facts of the case, the witnesses, and so on.
Speaker 2: Justice Elizabeth Gonzalez noted at today's hearing that it didn't
Speaker 2: involve an appeal per se, but the defense's desire for
Speaker 2: an emergency stay, an order that would prevent the trial
Speaker 2: from starting on time. She said she would review related
Speaker 2: court filings and issue a decision quote at some point.
Speaker 2: Coming up next on the Bloomberg Law Show, the First
Speaker 2: Amendment shields a Broadway producer's casting decision from discrimination claims.
Speaker 2: I'm June Grosse and you're listening to Bloomberg. He hadies
Speaker 2: down is the Tony Award winning musical about the myth
Speaker 2: of Orpheus and Euryticy, and it's now the latest example
Speaker 2: of how the First Amendment can shield casting decisions from
Speaker 2: claims of discrimination. Joining Me's employment law expert Anthony Ansee,
Speaker 2: a partner at Pross Gower Rose Tony, tell us about
Speaker 2: the facts here because it seemed like the producers of
Speaker 2: this show were sort of between a rock and a
Speaker 2: hard place when they realized that the chorus consisted of
Speaker 2: all black actors and Orpheus, who rescues the chorus from
Speaker 2: never ending labor, was a white actor.
Speaker 1: So I think they were trying to balance some very
Speaker 1: important issues on both sides, and interestingly, I think they
Speaker 1: were being racially sensitive. That's perhaps the most ironic part
Speaker 1: of this case. By making the decision that they made,
Speaker 1: They in the initial configuration of the cast, had a
Speaker 1: white actor on the one hand who was playing one
Speaker 1: of the lead roles, and a number of other cast
Speaker 1: members were all black, and the inadvertent message that apparently
Speaker 1: was being inferred from that was one of a white
Speaker 1: savior saving the black cast members, and that was what
Speaker 1: sort of touched off the ultimate decision that they made
Speaker 1: with respect to the casting.
Speaker 2: So the producers fired a black actor in the chorus
Speaker 2: and replaced her with a white actor, and she sued them.
Speaker 2: What were the grounds of her suit?
Speaker 1: She sued for a number of things, most particularly employment
Speaker 1: discrimination because she said that she was in a protected
Speaker 1: class as she is, that she was terminated because of
Speaker 1: her race, and that in almost every other context, you
Speaker 1: can imagine in an employment setting would probably be enough
Speaker 1: to at least continue to pursue the case. Interestingly, with
Speaker 1: those claims with respect to employment discriminations were dismissed at
Speaker 1: the very earliest stage, at the pleadings stage.
Speaker 2: So was it dismissed because the producers raised a First
Speaker 2: Amendment defense and tell us about that right?
Speaker 1: So what the court did is they very deliberately went
Speaker 1: through first her allegations and concluded that she had at
Speaker 1: least the makings of a successful lawsuit. As I said,
Speaker 1: she was in a protected category. She says that her
Speaker 1: race was a factor, if not the primary factor, in
Speaker 1: the termination decision, and sought to pursue a claim for
Speaker 1: discrimination based upon her race. The producers, however, argued in
Speaker 1: response that they had a First Amendment right to make
Speaker 1: the decision that they made, and in particular with respect
Speaker 1: to casting a Broadway play, they said was an expression
Speaker 1: of their First Amendment rights and they therefore were immune,
Speaker 1: they argued from a discrimination claim such as the one
Speaker 1: that was being brought by the former employee in this case,
Speaker 1: and am Matt and.
Speaker 2: Federal judge agreed with the producers as far as the
Speaker 2: discrimination claim she dismissed the plaintiffs discrimination claims, but allowed
Speaker 2: her retaliation claims to go forward.
Speaker 1: I should offer a cautionary note here, and that is
Speaker 1: that this arose obvis in the entertainment context for a
Speaker 1: Broadway production. And there are a few other cases, and
Speaker 1: I emphasize just a few, that have similarly arisen in
Speaker 1: the entertainment industry, principally involving casting related decisions that are
Speaker 1: made by employers. And most, if not all the cases
Speaker 1: that I found, at least so far, and there's probably
Speaker 1: not more than five or six of them, have endorsed
Speaker 1: the producers or the directors, or the individuals who are
Speaker 1: otherwise making the employment decisions. For example, there's been some
Speaker 1: cases involving beauty contests and things like that, involving, for example,
Speaker 1: transgender applicants to an all female beauty contest, And almost
Speaker 1: all these cases come out the same way, and that
Speaker 1: is that the courts that have reviewed these claims of
Speaker 1: discrimination have come down on the side of the defendant
Speaker 1: of the employer, saying that this is a very unique
Speaker 1: situation in which there is creative expression that occurs, and
Speaker 1: that creative expression in the form of casting is detected
Speaker 1: by the First Amendment.
Speaker 2: And you have to tell me about the case involving
Speaker 2: the Bachelor, because that's such a popular, popular show appointment viewing.
Speaker 1: Yes, And this most recent opinion, which came out just
Speaker 1: on March seventh, so it's brand new, it does rely
Speaker 1: to some extent on the so called Bachelor opinion, which
Speaker 1: is from a federal court in Tennessee in twenty twelve,
Speaker 1: so it actually is quite a while ago. And that
Speaker 1: case involved two black men who claimed that they sought
Speaker 1: to but were not permitted, to be on the Bachelor
Speaker 1: show in twenty twelve. And they said that the reason
Speaker 1: was that they were black, and they noted in their
Speaker 1: lawsuit that up to that point, at least all of
Speaker 1: the contestants had been white. And they went further and
Speaker 1: said that the producers were refusing to cast non white
Speaker 1: bachelors and bachelorettes by the way, to avoid the quote
Speaker 1: controversy stemming from an interracial romance, and to convey the
Speaker 1: message quote that only all white relationships are desirable and
Speaker 1: worthy of national attention. Now, not surprisingly, the producers vehemently
Speaker 1: and categorically denied that those were the messages that they
Speaker 1: sought to send or that those were the motivating factors
Speaker 1: behind the decisions that had been made, but the court
Speaker 1: said it didn't matter. The court said, again using the
Speaker 1: First Amendment affirmative defense that played out in the Hadestown case,
Speaker 1: that even if let's assume for a moment, because that's
Speaker 1: what happens on emotion to dismiss, you assume everything that's
Speaker 1: being alleged is true. And then the court asks itself
Speaker 1: the question, even if everything that is being alleged is true,
Speaker 1: is that a basis to continue with this lawsuit? So
Speaker 1: for purpose of promotion to dismiss. In the Bachelor case,
Speaker 1: the court assumed that the producers may have had those
Speaker 1: unsavory points of view with respect to interracial romance and
Speaker 1: with respect to all white relationships and so on, and
Speaker 1: said that even if that were the case, it wouldn't matter.
Speaker 1: That this is still expression of a creative nature that
Speaker 1: is being exercised by the producers, and as a result
Speaker 1: of that, the inquiry stops. That the First Amendment basically
Speaker 1: stands in the way of a discrimination claim by someone
Speaker 1: who is claiming that there was some invidious discrimination behind
Speaker 1: the decision making.
Speaker 2: This casting claim was even used with regard to television news,
Speaker 2: which I found really interesting. I think most people know that,
Speaker 2: in general, the decisions to hire TV news reporters or
Speaker 2: in this case, whether people are based in part on
Speaker 2: how they look.
Speaker 1: In California, these kinds of cases, and again there's just
Speaker 1: a smattering of them, very few cases involving these kinds
Speaker 1: of claims and these kinds of defenses, at least in
Speaker 1: the published record, but they are dealt with slightly differently
Speaker 1: in California. We actually in California have something called the
Speaker 1: Anti SLAP stat which is kind of acronym's gone wild,
Speaker 1: and slap is spelled with two p's, so it's the
Speaker 1: anti slapp statue, and that stands for strategic lawsuit against
Speaker 1: public participation. So yeah, I think it's an acronym in
Speaker 1: search of words and not the other way around. But
Speaker 1: in any event, what it is is a means by
Speaker 1: which a defendant who is making a casting decision, as
Speaker 1: you mentioned in one case involving an on air weather reporter,
Speaker 1: is able to essentially dismiss the claim that's brought alleging discrimination,
Speaker 1: and the basis for dismissal is this first amendment. The
Speaker 1: same kind of first Amendment defense that we've been talking about.
Speaker 1: So that's what happened in this case. An older white
Speaker 1: male challenged decision that was made to instead of hiring him,
Speaker 1: hiring younger, more attractive female weather reporters, and he alleged
Speaker 1: that that was discrimination based upon his age and his gender.
Speaker 1: And he said that because younger attractive female form being
Speaker 1: hired as on air weather reporters, that obviously had a
Speaker 1: discriminatory effect and precluded him from being hired. And again
Speaker 1: this same analysis was used in the case. The court
Speaker 1: indulged the possibility that that was in fact what was
Speaker 1: going on, that the local weather reporter was being hired
Speaker 1: based upon gender, or based upon age or attractiveness, what
Speaker 1: have you. And the court said, nonetheless, the television station
Speaker 1: in that case was involved in quote expressive activity under
Speaker 1: the First Amendment, and that such selection choices were quote
Speaker 1: essentially casting decisions. We don't typically think of the weather
Speaker 1: reporter as a casting decision, but it's not very difficult
Speaker 1: to imagine that because it does have some of the
Speaker 1: same characters. And therefore, once again the employer, the producer,
Speaker 1: under these circumstances was immune from this discrimination claim that
Speaker 1: was being alleged by the prospective weather reporter.
Speaker 2: So do you think that all these cases mean that
Speaker 2: you know, whether it's film or theater or TV, that
Speaker 2: producers can cast whomever they want in a roll and
Speaker 2: know that if discrimination claims are filed, they're going to win.
Speaker 1: I think that we're close to that if it is
Speaker 1: genuinely a casting related decision, and it is genuinely connected
Speaker 1: to some kind of creative expression, and I know those
Speaker 1: are rubbery words, and it's probably going to be the
Speaker 1: case if it hasn't already been the case, and maybe
Speaker 1: some cases that we've not yet seen published that those
Speaker 1: might be inapplicable in certain decisions. But I think that
Speaker 1: anybody who is either thinking of suing an entertainment company
Speaker 1: and who might be subject to some form of casting
Speaker 1: or some form of selection by the producer or by
Speaker 1: the entertainment related company, I think is going to have
Speaker 1: tougher odds in being able to proceed with a lawsuit. Conversely,
Speaker 1: I think that anybody who's defending as I do defend
Speaker 1: employers many within the entertainment industry, if there is something
Speaker 1: related to expression of creativity or casting, this should be
Speaker 1: a first stop consideration and I think, obviously there's going
Speaker 1: to be limits to that that probably would not apply
Speaker 1: to an in house lawyer at a studio or at
Speaker 1: a Broadway production, or an accountant. It probably wouldn't apply
Speaker 1: to somebody who's a member of the crew who's not
Speaker 1: necessarily going to be in any way exposed to the
Speaker 1: public in terms of the performance. So I think, although
Speaker 1: this is interesting and categorically uncharacteristic, I guess of what
Speaker 1: we typically think of in terms of discrimination lawsuits, it
Speaker 1: is a very powerful defense, very narrow area within the
Speaker 1: entertainment industry, and one that I think you don't have
Speaker 1: to look much further than I went back and checked.
Speaker 1: In my view of The Godfather, I think the motion
Speaker 1: picture movie from the nineteen seventies would be much different
Speaker 1: if the casting decisions had been different. And we all
Speaker 1: know it's a matter of public record that some of
Speaker 1: the most influential producers of that film preferred some of
Speaker 1: the leading actors of the day, including Laurence Olivier, George C. Scott,
Speaker 1: and even Danny Thomas as the Godfather Beato Corleone, over
Speaker 1: Marlon Brando. And it was really only the very strong
Speaker 1: creative decision and the force of personality, and of course
Speaker 1: the influence that Francis Ford Coppola had as the director
Speaker 1: that he was able to make sure that his singular choice,
Speaker 1: Marlon Brando, was chosen for that role. But it doesn't
Speaker 1: take a lot of imagination to think what would that
Speaker 1: motion and picture have been like if any of those individuals,
Speaker 1: all fine actors had been cast and not the iconic
Speaker 1: Marlon Brando or al Pacino.
Speaker 2: Because Francis Ford Coppla had a fight tooth and nail
Speaker 2: to get al Pacino in that.
Speaker 1: Role, that is correct. There's been a lot of post
Speaker 1: Godfather history, including a relatively recent television dramatization about the
Speaker 1: casting and the production of the film that talked a
Speaker 1: lot about that and that mister Baccino was on thin
Speaker 1: ice and the producers very much did not want him.
Speaker 1: And of course you can't imagine anyone being Michael corleone
Speaker 1: other than al Pacina.
Speaker 2: You really can't at this point. Thanks so much, Tony
Speaker 2: for your Godfather insights as well as your legal insights.
Speaker 2: That's Anthony on Seedi of Pross Cower Rose