WEBVTT - Weekend Law: A Supreme Court Roundup 0:00:02.520 --> 0:00:09.760 Bloomberg Audio Studios, podcasts, radio news. This is Bloomberg Law. 0:00:09.840 --> 0:00:12.720 Employers frequently exploit the weaknesses in the law. 0:00:12.800 --> 0:00:15.080 Of course, are going to be asking questions about separation 0:00:15.160 --> 0:00:15.840 of powers. 0:00:15.920 --> 0:00:18.880 One by one, Google settled with all of these other plaintiffs. 0:00:18.880 --> 0:00:22.119 Interviews with prominent attorneys and Bloomberg Legal experts. 0:00:22.200 --> 0:00:25.599 Joining me is immigration law expertly on Fresco, First Amendment 0:00:25.680 --> 0:00:27.560 law expert Caroline Malick. 0:00:27.360 --> 0:00:31.520 Corbin, and analysis of important legal issues, cases and headlines that. 0:00:31.600 --> 0:00:34.240 Trial judge may well want to hold a hearing. 0:00:34.360 --> 0:00:36.159 They have never said this case. 0:00:36.000 --> 0:00:37.920 Should never have been brought in the first place. 0:00:38.000 --> 0:00:42.080 Bloomberg Law with June Grosso from Bloomberg Radio. 0:00:45.600 --> 0:00:49.000 Welcome to a special holiday edition of the Bloomberg Law Show. 0:00:49.440 --> 0:00:53.199 I'm June Grosso. Ahead. In this hour, we'll focus on 0:00:53.320 --> 0:00:57.680 cases before the Supreme Court. The justices will decide when 0:00:57.720 --> 0:01:01.480 it's okay for police to enter a home during an emergency, 0:01:02.320 --> 0:01:05.839 whether a judge can bar a criminal defense attorney from 0:01:05.880 --> 0:01:10.160 talking to their own clients during their testimony, and whether 0:01:10.280 --> 0:01:15.280 to invalidate Colorado's ban on conversion therapy for miners. 0:01:16.080 --> 0:01:23.080 If the police could not enter this house based on 0:01:23.800 --> 0:01:27.280 the facts that they knew then. I don't know when 0:01:27.360 --> 0:01:29.360 the police are ever going to be able to enter 0:01:29.360 --> 0:01:33.240 a house to prevent somebody from committing suicide. 0:01:33.520 --> 0:01:36.280 Police didn't have a warrant when they entered the home 0:01:36.319 --> 0:01:39.600 of an army veteran in Montana. But they weren't there 0:01:39.640 --> 0:01:43.080 to arrest William Trevor Case. They were there to help him. 0:01:43.520 --> 0:01:47.120 His ex girlfriend said that Case had threatened suicide and 0:01:47.160 --> 0:01:51.640 had a loaded handgun. The police knocked, they yelled, They 0:01:51.720 --> 0:01:55.440 waited forty minutes, and then they went in. The question 0:01:55.520 --> 0:01:59.040 before the Supreme Court is what's the standard for police 0:01:59.280 --> 0:02:02.960 entering a home in an emergency? Justice is from across 0:02:03.000 --> 0:02:07.480 the ideological spectrum suggested that the officers were right to 0:02:07.600 --> 0:02:11.320 go in in this case. Here are Justices Samuel Alito 0:02:11.520 --> 0:02:13.120 and Katanji Brown Jackson. 0:02:13.560 --> 0:02:15.720 What more would they need here? If they need to 0:02:15.760 --> 0:02:17.680 be able to look through the window and see him 0:02:17.680 --> 0:02:19.600 with a gun and point it to his head, or 0:02:19.639 --> 0:02:21.440 they need to see a dead body on the floor, 0:02:21.639 --> 0:02:22.240 what more. 0:02:22.040 --> 0:02:22.640 Did they need? 0:02:23.880 --> 0:02:29.240 This person had a long history of threatening suicide, whether 0:02:29.320 --> 0:02:31.720 it be by cop or whether it be on his 0:02:31.800 --> 0:02:36.600 own or whatever. We have a long conversation detailed specific 0:02:36.760 --> 0:02:41.240 with the girlfriend about circumstances that look like they're creating 0:02:41.280 --> 0:02:42.799 a pretty significant emergency. 0:02:43.400 --> 0:02:49.200 And Justice Brett Kavanaugh questioned Case's attorney about the alternative scenario. 0:02:49.680 --> 0:02:53.680 Well, if they, after deliberations, walk away and he commits suicide, 0:02:53.960 --> 0:02:56.560 I mean, what are you thinking, Then it's the officers. 0:02:56.160 --> 0:02:59.520 That would be unfortunate and tragic. But we are trying 0:02:59.520 --> 0:03:00.920 to strike up balance between it. 0:03:01.240 --> 0:03:04.720 And the officers need some clarity, I would think in 0:03:04.800 --> 0:03:07.640 circumstances like this about what they can do and what 0:03:07.720 --> 0:03:09.360 they can't do. 0:03:09.880 --> 0:03:12.200 But there was no such clarity by the end of 0:03:12.240 --> 0:03:16.600 the arguments. Joining me is former federal prosecutor Robert Mintz, 0:03:16.720 --> 0:03:21.040 a partner maccarter in English, Bob, So, police normally need 0:03:21.200 --> 0:03:25.280 a warrant to enter home, but there are some emergency 0:03:25.400 --> 0:03:28.799 situations that are exceptions. Tell us about that. 0:03:29.400 --> 0:03:33.000 So there is a so called Emergency Aid exception to 0:03:33.080 --> 0:03:36.000 the Fourth Amendment, which allows police officers to conduct a 0:03:36.120 --> 0:03:40.600 warrantless search if they have reasonable suspicion that there is 0:03:40.640 --> 0:03:44.360 an emergency and an immediate need to protect others or 0:03:44.400 --> 0:03:45.520 themselves from harm. 0:03:45.960 --> 0:03:49.120 And tell us about the facts here. Because Case ended 0:03:49.200 --> 0:03:52.680 up being convicted of assaulting a police officer. 0:03:53.160 --> 0:03:56.160 The defendant in this case, William Trevor Case, was an 0:03:56.280 --> 0:04:00.960 army veteran who had a girlfriend who contacted police suggesting 0:04:01.200 --> 0:04:05.000 that mister Case might be suicidal. Officers arrived at mister 0:04:05.080 --> 0:04:08.480 Casey's house around nine pm, and they were familiar with 0:04:08.520 --> 0:04:11.920 his history of alcohol abuse and certain mental health issues. 0:04:12.160 --> 0:04:15.280 The ex girlfriend had told police that mister Case had 0:04:15.320 --> 0:04:18.160 a loaded gun, He had threatened to harm police if 0:04:18.200 --> 0:04:20.880 she tried to send officers to his home, and she 0:04:21.040 --> 0:04:23.760 claimed before she hung up with the police that she 0:04:23.760 --> 0:04:26.560 had heard a pop and then silence and was concerned 0:04:26.560 --> 0:04:29.919 that mister Case had actually pulled the trigger. The officers 0:04:30.040 --> 0:04:33.240 arrived at mister Case's door, they yelled, they shine flashlights 0:04:33.279 --> 0:04:36.240 through the windows. They could see empty beer cans, an 0:04:36.240 --> 0:04:40.359 empty handgun holster, and a notepad with handwriting, which the 0:04:40.400 --> 0:04:43.960 officers believed at the time was a possible suicide note. 0:04:44.080 --> 0:04:47.800 After about forty minutes, they entered through the unlocked front door, 0:04:48.040 --> 0:04:51.120 and when they went upstairs, they saw a closet curtain open. 0:04:51.560 --> 0:04:55.680 Mister Case lunged forward, his armed outstretched with what officers 0:04:55.720 --> 0:04:59.159 believed was a handgun. The officer fired one shot, striking 0:04:59.200 --> 0:05:01.479 mister Case. In the act abdomen. It turned out the 0:05:01.520 --> 0:05:05.120 handgun was found in a nearby laundry basket. The issue 0:05:05.120 --> 0:05:08.320 with trial, then, was when the defense tried to exclude 0:05:08.320 --> 0:05:11.520 the gun and other evidence of the confrontation from the trial. 0:05:11.760 --> 0:05:15.760 The trial judge overruled that defense and allowed the prosecution 0:05:16.240 --> 0:05:18.440 to present it to the jury, and he was convicted 0:05:18.480 --> 0:05:19.240 after a trial. 0:05:19.600 --> 0:05:22.039 It seemed like the police had a lot of reasons 0:05:22.200 --> 0:05:25.160 to go in. How much more did the defense think 0:05:25.200 --> 0:05:27.039 they should have before they entered the house. 0:05:27.400 --> 0:05:29.440 To put this in context, the Fourth Amendment of the 0:05:29.480 --> 0:05:34.600 Constitution prohibits unreasonable searches and provides protections for a person's 0:05:34.680 --> 0:05:38.359 home by generally prohibiting law enforcement from entering without a 0:05:38.400 --> 0:05:41.440 warrant that is really set up in order to allow 0:05:41.480 --> 0:05:44.480 people to have privacy in their home in the context 0:05:44.760 --> 0:05:48.080 of a possible criminal case. The question that was facing 0:05:48.279 --> 0:05:51.880 justices in this case is what level of certainty must 0:05:51.960 --> 0:05:55.760 police have that an emergency is underway before entering a 0:05:55.800 --> 0:05:59.560 home without a warrant. Mister Case's lawyers argued that it 0:05:59.600 --> 0:06:02.000 should be a high bar. They argue that it should 0:06:02.000 --> 0:06:05.560 be something called probable cause, which is what police officers 0:06:05.680 --> 0:06:09.120 need in order to get a warrant to search your 0:06:09.200 --> 0:06:12.560 home in the case of a criminal investigation. But here 0:06:12.880 --> 0:06:15.680 this was not a criminal investigation. This was a circumstance 0:06:15.960 --> 0:06:18.960 in which they believed that there was an emergency and 0:06:19.040 --> 0:06:22.160 there was someone's life at risk inside the house. So 0:06:22.200 --> 0:06:24.599 the question is what is the level of certainty that 0:06:24.640 --> 0:06:26.919 police officers need to have in order to enter the 0:06:26.960 --> 0:06:29.880 home without a warrant? And the defense argued that that 0:06:30.000 --> 0:06:32.920 level of certainty in order to avoid needless and dangerous 0:06:32.960 --> 0:06:37.240 confrontations and to prevent police officers from circumventing the concept 0:06:37.240 --> 0:06:40.120 of probable cause, that there has to be probable cause 0:06:40.320 --> 0:06:42.719 that they believe that there is an emergency and that 0:06:42.839 --> 0:06:44.280 somebody is in imminent danger. 0:06:44.680 --> 0:06:48.200 The state of Montana and the Trump administration argued that 0:06:48.360 --> 0:06:52.760 probable cause was too high a standard in these emergency cases. 0:06:53.240 --> 0:06:57.839 Montana's solicitor general said that a stricter rule of probable 0:06:57.920 --> 0:07:02.240 cause would quote require hire police to stand outside a 0:07:02.360 --> 0:07:06.000 dying man's door. So what standard did they argue for. 0:07:06.440 --> 0:07:10.200 The government argued that the justices should rely on a 0:07:10.240 --> 0:07:13.400 Supreme Court case from two thousand and six was a 0:07:13.480 --> 0:07:17.080 unanimous opinion in a case called Brigham City versus Stuart, 0:07:17.360 --> 0:07:19.760 in which the Supreme Court held that police may enter 0:07:19.760 --> 0:07:23.320 a building without a warrant when they have an objectively 0:07:23.640 --> 0:07:27.480 reasonable basis to believe that an occupant is seriously injured 0:07:27.760 --> 0:07:31.200 or threatened with such injury. So in that case, they 0:07:31.240 --> 0:07:33.840 took it completely out of the context of probable cause, 0:07:34.080 --> 0:07:37.240 which really has an entire body of case law that 0:07:37.360 --> 0:07:40.200 talks about when police may enter a home with or 0:07:40.200 --> 0:07:42.920 without a warrant in the context of a criminal investigation, 0:07:43.280 --> 0:07:47.000 and said that here we're talking about imminent risk to somebody. 0:07:47.160 --> 0:07:50.600 It's not a criminal investigation. It's really a circumstance where 0:07:50.640 --> 0:07:53.400 police officers may come into a home in order to 0:07:53.520 --> 0:07:56.640 arguably save the life of somebody or save the life 0:07:56.680 --> 0:07:59.160 of somebody who may be with somebody who's in danger 0:07:59.200 --> 0:08:01.920 of hurting them. And in that case the standard is 0:08:02.040 --> 0:08:05.600 objectively reasonable basis to believe that the occupant is seriously 0:08:05.640 --> 0:08:07.920 injured or threatened with such injury. 0:08:08.600 --> 0:08:12.880 It seemed like justice is across the ideological spectrum, thought 0:08:12.960 --> 0:08:16.160 that the police had good reason to enter here. 0:08:16.480 --> 0:08:19.800 Yeah, Well, what's interesting here is that the Montana Supreme Court, 0:08:20.040 --> 0:08:22.160 which is the court that had just heard the case 0:08:22.200 --> 0:08:25.840 before going to the US Supreme Court sided with the state, 0:08:25.880 --> 0:08:27.960 but it was a four to three decision, and there 0:08:27.960 --> 0:08:31.040 were actually three judges on the Montana Supreme Court who 0:08:31.080 --> 0:08:34.960 dissented and said that for a warrantless search to be reasonable, 0:08:35.040 --> 0:08:38.000 the higher bar or probable cause, must apply, And then 0:08:38.000 --> 0:08:40.640 they went further and added that there was no probable 0:08:40.679 --> 0:08:44.240 cause to believe mister Case was an imminent danger or 0:08:44.280 --> 0:08:47.400 in need of immediate assistants that would have justified the 0:08:47.440 --> 0:08:50.480 warrantless entry into the home. When the case went to 0:08:50.520 --> 0:08:53.960 the Supreme Court and was argued before the justice is there, 0:08:54.320 --> 0:08:58.360 there was virtual unanimity that the standard that had been 0:08:58.360 --> 0:09:02.000 applied by the state was the cour First. For example, 0:09:02.160 --> 0:09:06.079 Justice Thomas noted that the issue or probable cause is 0:09:06.120 --> 0:09:09.280 a standard that is normally limited to the criminal context. 0:09:09.280 --> 0:09:12.960 This was not a criminal investigation, and Justice Robert joined 0:09:12.960 --> 0:09:15.800 in on that to say, when we talk about probable cause, 0:09:16.040 --> 0:09:19.520 we talk about probable cause that a crime is occurring. 0:09:19.920 --> 0:09:22.600 What standard would be used here when we're not talking 0:09:22.640 --> 0:09:25.959 about a crime, but about a risk of injury to somebody? 0:09:26.160 --> 0:09:29.320 And Justice Kagan also jumped in, saying that there is 0:09:29.360 --> 0:09:33.280 a full body of case law out there describing what 0:09:33.480 --> 0:09:36.920 probable cause is. It's not a self defining term. It 0:09:36.920 --> 0:09:40.280 has been raised in many cases, and there is a 0:09:40.480 --> 0:09:45.200 full explanation in the criminal context of what constitutes probable cause, 0:09:45.480 --> 0:09:48.760 but this is something entirely different. And the justices all 0:09:48.880 --> 0:09:52.000 seemed to go back to the Brigham City versus Stewart 0:09:52.040 --> 0:09:55.280 case from two thousand and six to say that the 0:09:55.400 --> 0:09:59.680 standard of objectively reasonable basis for believing that somebody needs 0:10:00.000 --> 0:10:03.760 emergency help. Is this standard that should apply here, and 0:10:03.920 --> 0:10:08.840 Justice Alito and Justice Brown agreed, which doesn't happen very often. 0:10:09.040 --> 0:10:12.000 They both push back on the contention here of the 0:10:12.000 --> 0:10:16.040 defense lawyer that this was an unreasonable act by police. 0:10:16.200 --> 0:10:18.760 Justice Alito went so far as to say, if the 0:10:18.840 --> 0:10:21.640 police couldnot enter the house based on the facts that 0:10:21.679 --> 0:10:24.080 they knew in this case, then I don't know when 0:10:24.120 --> 0:10:26.480 police are ever able to go into a house to 0:10:26.480 --> 0:10:30.640 prevent something from committing suicide. The concern here is that 0:10:30.720 --> 0:10:34.360 if there is a legal standard of probable cause in 0:10:34.480 --> 0:10:38.080 order to go in under these emergency situations, that police 0:10:38.120 --> 0:10:41.319 officers may hesitate to go into a house when somebody's 0:10:41.360 --> 0:10:44.079 life is at risk, And they seem to weigh more 0:10:44.200 --> 0:10:48.560 in favor of protecting the life of an individual and 0:10:48.679 --> 0:10:52.720 allowing police officers more latitude to go in under these 0:10:52.760 --> 0:10:56.920 circumstances than they were about the privacy concerns of entering 0:10:56.920 --> 0:10:58.160 a house without a warrant. 0:10:58.600 --> 0:11:00.760 So do you think that the justice is will just 0:11:01.240 --> 0:11:03.839 announce a standard and that will be the end of 0:11:03.880 --> 0:11:04.320 the case. 0:11:04.960 --> 0:11:08.520 If the Supreme Court decides to uphold the lower court, 0:11:08.559 --> 0:11:11.000 then there was some discussion about what comes next. 0:11:11.280 --> 0:11:12.320 In other words, there were. 0:11:12.200 --> 0:11:16.520 Some justices who said that they should simply rule that 0:11:16.559 --> 0:11:19.480 the lower court was correct and that the standard of 0:11:19.640 --> 0:11:24.840 objectively reasonable was properly applied, and that in this case, 0:11:25.040 --> 0:11:28.840 clearly the facts warranted the police entering the home. Justice 0:11:28.880 --> 0:11:31.960 Soto Manor and Justice Thomas, on the other hand, argued 0:11:32.040 --> 0:11:34.040 that it's the normal practice of the court if they're 0:11:34.080 --> 0:11:36.840 not certain about a standard and state a new standard, 0:11:37.040 --> 0:11:39.600 then it should be sent back to the Montana Supreme 0:11:39.640 --> 0:11:43.439 Court to determine whether, based on these facts, that objectively 0:11:43.559 --> 0:11:47.680 reasonable standard had in fact been satisfied. Justice Alito expressed 0:11:47.679 --> 0:11:51.320 some concern that in doing that it might suggest to 0:11:51.360 --> 0:11:53.840 the lower court that this was in some way a 0:11:53.840 --> 0:11:56.800 close call, and could, he argued, have some kind of 0:11:56.800 --> 0:11:59.839 a killing effect on police when they're trying to determine 0:12:00.000 --> 0:12:03.000 whether to enter a house to prevent somebody from committing suicide. 0:12:03.320 --> 0:12:07.559 And the Supreme Court is usually protective of the expectation 0:12:07.720 --> 0:12:11.400 of privacy in one's own home. And we should point 0:12:11.440 --> 0:12:15.520 out here that some civil rights and privacy groups did 0:12:15.559 --> 0:12:18.200 line up behind the defendant in this case. 0:12:18.880 --> 0:12:22.880 Mister Case's attorney reminded the justices that police had entered 0:12:22.880 --> 0:12:26.560 mister Case's home without permission, without a warrant, or without 0:12:26.600 --> 0:12:29.320 even probable cause, and ended up shooting him in his 0:12:29.360 --> 0:12:32.720 own home. He argued that the reasonablenst standard that the 0:12:32.760 --> 0:12:37.040 state was suggesting was so vague as to invite abuse 0:12:37.120 --> 0:12:38.800 and confusion by law enforcement. 0:12:39.440 --> 0:12:42.720 This is one case this term where it appears you 0:12:42.800 --> 0:12:45.880 never know, but it appears that we know how it's 0:12:45.920 --> 0:12:48.720 going to turn out. But we shall see. Thanks for 0:12:48.800 --> 0:12:52.520 joining me, Bob. That's former federal prosecutor Robert Mintz of 0:12:52.679 --> 0:12:56.720 Macarter and English. Coming up next, the Supreme Court appears 0:12:57.000 --> 0:13:01.840 likely to invalidate Colorado's ban on con perversion therapy for miners. 0:13:02.440 --> 0:13:05.200 I'm June Grosso and you're listening to Bloomberg. 0:13:08.320 --> 0:13:12.480 This is Bloomberg Law with June Grosso from Bloomberg Radio. 0:13:13.520 --> 0:13:16.760 You're listening to a special holiday edition of the Bloomberg 0:13:16.840 --> 0:13:21.120 Law Show. We're looking at several cases before the Supreme Court. 0:13:21.600 --> 0:13:26.720 Colorado Solicitor General Shannon Stevenson defended the state's ban on 0:13:26.840 --> 0:13:30.800 conversion therapy for miners at the Supreme Court. She argued 0:13:30.840 --> 0:13:35.160 that the Constitution allows states to protect patients from harmful, 0:13:35.280 --> 0:13:40.520 discredited treatments even if a regulation incidentally affects speech. 0:13:41.040 --> 0:13:43.840 A healthcare provider cannot be free to violate the standard 0:13:43.840 --> 0:13:47.240 of care just because they are using words, and a 0:13:47.280 --> 0:13:50.160 state cannot be required to let its vulnerable young people 0:13:50.480 --> 0:13:53.920 waste their time and money on an ineffective, harmful treatment 0:13:54.520 --> 0:13:56.760 just because that treatment is delivered through words. 0:13:57.160 --> 0:14:01.840 An evangelical Christian therapist is challenging the law, saying it 0:14:01.960 --> 0:14:06.440 violates her free speech rights, and the court's conservative justices 0:14:06.720 --> 0:14:11.000 appeared to agree with her, questioning the constitutionality of the law. 0:14:11.520 --> 0:14:15.360 Here are Chief Justice John Roberts and Justice Samuel Alito. 0:14:15.840 --> 0:14:20.640 In other words, just because they're engaged in conduct doesn't 0:14:20.680 --> 0:14:22.160 mean that their words aren't protected. 0:14:23.040 --> 0:14:25.120 Looks like blatant viewpoint discrimination. 0:14:25.440 --> 0:14:30.200 Liberal Justices Sonya Sotomayor and Katanji Brown Jackson were the 0:14:30.240 --> 0:14:34.640 only justices who addressed the harms of conversion therapy that 0:14:34.800 --> 0:14:38.280 every major medical association warns about. 0:14:38.440 --> 0:14:42.880 There are studies that say that this advice does harm 0:14:42.960 --> 0:14:46.840 the people emotionally and physically. 0:14:47.280 --> 0:14:51.240 And Justice Jackson questioned why the Colorado law should be 0:14:51.320 --> 0:14:54.840 struck down when in June the court upheld a different 0:14:54.880 --> 0:14:59.760 measure from Tennessee that bans transition related treatments for transgender 0:14:59.800 --> 0:15:00.400 care kids. 0:15:00.920 --> 0:15:04.200 The regulations work in basically the same way, and the 0:15:04.280 --> 0:15:08.640 question of scrutiny applies in both contexts, so it just 0:15:08.680 --> 0:15:10.600 seems odd to me that we might have a different 0:15:10.640 --> 0:15:11.320 result here. 0:15:11.800 --> 0:15:15.240 My guest is First Amendment expert Caroline Mala Corbin, a 0:15:15.320 --> 0:15:19.280 professor at the University of Miami Law School. Caroline, will 0:15:19.320 --> 0:15:23.480 you explain conversion therapy and Colorado's law banning it. 0:15:23.800 --> 0:15:28.000 As about half the states in the country have done. 0:15:28.000 --> 0:15:33.480 Colorado bans something that has been called gay conversion therapy, 0:15:34.120 --> 0:15:37.600 and it's the idea of trying to convince someone who 0:15:37.640 --> 0:15:40.760 is gay that they're not actually gay, or trying to 0:15:40.760 --> 0:15:43.880 convince someone who is trans that they're not actually trans. 0:15:44.160 --> 0:15:48.360 And this approach to gay and trans people has been 0:15:48.800 --> 0:15:53.240 proven to be very delictorious for their mental well being, 0:15:53.920 --> 0:15:58.080 and so states have forbidden it. They have made it 0:15:58.120 --> 0:16:04.480 illegal for license medical professionals to provide this as part 0:16:04.680 --> 0:16:08.480 of their practice of medicine. So to be very clear, 0:16:08.720 --> 0:16:12.920 it doesn't ban clergy from talking to people about sexual 0:16:12.920 --> 0:16:16.680 orientation or gender identity, and it doesn't even ban the 0:16:16.680 --> 0:16:19.880 therapists from talking about it in their own free time. 0:16:20.400 --> 0:16:24.360 But if they are in the process of providing health 0:16:24.440 --> 0:16:29.320 care services that they have been licensed to provide, they're 0:16:29.400 --> 0:16:32.680 not allowed to try and convince gay people that they're 0:16:32.760 --> 0:16:36.760 not gay, or trans people that they're not trans. That's 0:16:36.800 --> 0:16:37.760 the law, and. 0:16:37.680 --> 0:16:39.880 What's the fundamental issue in the case. 0:16:40.440 --> 0:16:43.880 So you have this law. It says, if you're licensed 0:16:43.880 --> 0:16:46.320 by the state, the state does not allow you to 0:16:46.360 --> 0:16:49.720 do things that are contrary to the standard of care, 0:16:50.000 --> 0:16:54.120 and so you cannot provide conversion therapy. And we have 0:16:54.240 --> 0:16:59.760 this white Christian woman who argues that the ban forbids 0:16:59.760 --> 0:17:03.400 her from providing the type of therapy that she wants 0:17:03.600 --> 0:17:07.800 to practice. She gets help from Alliance to Friending Freedom. 0:17:08.160 --> 0:17:11.000 And so the question before the court is does this 0:17:11.160 --> 0:17:17.880 ban on this medical therapy violate the licensed practitioners free 0:17:17.920 --> 0:17:21.080 speech rights. And so the question before the court is 0:17:21.280 --> 0:17:27.200 does this ban on this medical therapy violate the licensed 0:17:27.320 --> 0:17:33.639 practitioners free speech rights? And the legal question that makes 0:17:33.680 --> 0:17:39.640 all the difference is whether providing conversion therapy is speech 0:17:40.320 --> 0:17:44.840 or whether it's conduct. Because if it's speech, then it 0:17:44.960 --> 0:17:50.760 implicates the free speech clause. In fact, it becomes presumptively unconstitutional. If, 0:17:50.800 --> 0:17:55.360 on the other hand, it's considered conduct, then it doesn't 0:17:55.400 --> 0:17:58.520 trigger the free speech clause and the government is likely 0:17:58.600 --> 0:18:01.399 to be allowed to regulate it. So the million dollar 0:18:02.040 --> 0:18:08.400 constitutional question is how should this practice of conversion therapy 0:18:08.560 --> 0:18:12.960 get characterize? Is it speech or is it conduct? Now, 0:18:13.000 --> 0:18:16.240 I just want to point out that the speech in 0:18:16.280 --> 0:18:21.159 the colloquial sense doesn't always match speech in the constitutional sense. 0:18:21.800 --> 0:18:23.960 So let me give you a couple of examples when 0:18:24.240 --> 0:18:29.879 speech is not actually speech, which seems counterintuitive. And yet 0:18:30.240 --> 0:18:36.000 if for example, you told national security secrets to a 0:18:36.080 --> 0:18:40.080 foreign enemy, that's speech, but that it wouldn't be treated 0:18:40.119 --> 0:18:43.960 as speech. It would be treated as the conduct of treason. 0:18:44.160 --> 0:18:47.760 It's not protected by the free speech cause. Or for example, 0:18:48.600 --> 0:18:51.080 a sign on a restaurant that said we do not 0:18:51.440 --> 0:18:54.000 hire fill in the blank, we do not hire black 0:18:54.040 --> 0:18:58.320 people or Latino people or Asian people. That's words, but 0:18:58.359 --> 0:19:02.520 that would be considered speech. It would be considered the 0:19:02.600 --> 0:19:06.720 act of discrimination. And so while it may seem really 0:19:06.960 --> 0:19:10.600 obvious on its face, well this is words and therefore 0:19:10.640 --> 0:19:14.760 it's speech, it's not quite as clear cut as the 0:19:14.800 --> 0:19:18.040 Supreme Court is going to probably conclude. 0:19:18.880 --> 0:19:22.920 It seems like there is almost universal agreement among those 0:19:22.960 --> 0:19:26.800 who listen to the oral arguments that the Christian counselor 0:19:27.119 --> 0:19:28.080 is going to win here. 0:19:28.760 --> 0:19:34.480 I mean, clearly, whenever you have a white conservative Christian 0:19:35.240 --> 0:19:38.639 arguing before the Supreme Court, they're going to win, especially 0:19:38.680 --> 0:19:41.119 if the only thing that's stake, and I say only 0:19:41.560 --> 0:19:46.439 from the court's perspective is LGBTQ rights. They just don't care, right, So, 0:19:46.640 --> 0:19:50.159 I think it was a foregone conclusion, apart from any 0:19:50.200 --> 0:19:54.080 of the legal principles, that the white Christian woman was 0:19:54.119 --> 0:19:56.360 going to win. You know, I never used to predict 0:19:56.400 --> 0:19:59.560 the outcome of Supreme Court cases, but it seems the 0:19:59.640 --> 0:20:03.320 pattern is so clear these days that I think one 0:20:03.320 --> 0:20:05.840 could say with a certain degree of confidence that she's 0:20:05.880 --> 0:20:09.560 going to win. And they're basically going to say this 0:20:09.600 --> 0:20:15.040 is speech, and therefore it is presumptively unconstitutional, and only 0:20:15.080 --> 0:20:19.560 if the government has a super compelling justification for its law, 0:20:20.119 --> 0:20:24.760 and the law was the only way to accomplish its goals, 0:20:24.840 --> 0:20:27.080 it's not going to win. In other words, it's going 0:20:27.119 --> 0:20:29.240 to have to pass what is known as strict scrutiny, 0:20:29.560 --> 0:20:30.800 and that is very hard to do. 0:20:30.880 --> 0:20:33.840 In the speech context, it seemed like most of the 0:20:33.880 --> 0:20:37.120 discussion was about what standard should be applied here. 0:20:37.720 --> 0:20:42.919 Well, that's because if it is considered speech, then the 0:20:42.960 --> 0:20:45.800 standard is going to be strict scrutiny, and if it 0:20:45.880 --> 0:20:48.959 is not speech, then it's only going to be rational 0:20:49.000 --> 0:20:53.280 basis scrutiny. So what level of scrutiny a court must 0:20:53.400 --> 0:20:57.240 give to this law, how hard it looks at it, 0:20:57.359 --> 0:21:02.080 questions it, The level of evidence the government needs to 0:21:02.119 --> 0:21:06.320 provide will depend on whether it is speech or conduct, 0:21:06.440 --> 0:21:10.520 because again, if it is speech, then it implicates the 0:21:10.560 --> 0:21:11.520 free speech clause. 0:21:12.240 --> 0:21:15.359 Is this a novel issue coming to the court? Have 0:21:15.440 --> 0:21:17.720 they decided any similar cases? 0:21:18.040 --> 0:21:22.760 The Supreme Court is not deciding this against a blank slate. 0:21:23.240 --> 0:21:28.080 They have already considered the question of medical treatment and 0:21:28.200 --> 0:21:32.000 speech conduct. But in the abortion context. So I want 0:21:32.000 --> 0:21:36.160 to highlight that many states who are hostile to abortion. 0:21:36.480 --> 0:21:39.720 One of the things that they require their abortion providers 0:21:39.760 --> 0:21:45.399 to do is to give women certain information about abortion. So, 0:21:45.680 --> 0:21:49.760 for example, you have to let women know that adoption 0:21:49.920 --> 0:21:53.520 is an option, or that fathers have to pay child support. 0:21:53.720 --> 0:21:56.679 Other states have held that women have to be told 0:21:56.920 --> 0:21:59.399 all the harms that may result from abortion, some of 0:21:59.400 --> 0:22:02.159 which are not even medically accurate. But the point I 0:22:02.200 --> 0:22:06.040 want to make here is that doctors challenge this regulation 0:22:06.200 --> 0:22:10.640 on speech grounds and argued, the government is forcing us 0:22:10.680 --> 0:22:14.560 to say things that are contrary to what we believe 0:22:14.880 --> 0:22:19.480 is appropriate and correct. And you might think, well, these 0:22:19.480 --> 0:22:23.520 are words, and they're being forced to articulate a particular 0:22:23.720 --> 0:22:27.840 viewpoint on things, for example, don't have an abortion, you know, 0:22:28.160 --> 0:22:31.439 adopt your child out instead. That it too, should be 0:22:31.560 --> 0:22:36.040 considered a regulation of speech that sort of compels a viewpoint. 0:22:36.200 --> 0:22:40.480 It's a viewpoint based restriction and therefore should trigger strict 0:22:40.520 --> 0:22:44.920 scrutiny and be presumptively unconstitutional. But that is not what 0:22:44.960 --> 0:22:48.560 the Supreme Court did. What the Supreme Court said is 0:22:48.600 --> 0:22:52.640 that these laws that compel doctors to speak against their 0:22:52.640 --> 0:22:55.320 will and say things that they don't want to say. 0:22:55.960 --> 0:22:59.800 The Supreme Court helped that is not a regulation of speech, 0:23:00.480 --> 0:23:04.760 that is actually a regulation of the medical profession that 0:23:04.960 --> 0:23:11.080 only incidentally affects speech. So they're designing this case against 0:23:11.119 --> 0:23:16.159 a backdrop of the Supreme Court already having held in 0:23:16.240 --> 0:23:20.600 a different context that speech that is connected to the 0:23:20.640 --> 0:23:24.960 provision of medical treatment is not necessarily going to be 0:23:25.080 --> 0:23:29.040 treated like speech. And so you know, oh, it just 0:23:29.080 --> 0:23:33.280 so happens, right that if you're challenging something that's anti abortion, 0:23:33.840 --> 0:23:38.320 it's not speech, but if you're challenging something that's pro LGBT, 0:23:39.320 --> 0:23:40.160 it is speech. 0:23:40.880 --> 0:23:44.560 The Supreme Court has been steadily rolling back protections for 0:23:44.680 --> 0:23:48.240 gay and transgender people in recent terms. The last time 0:23:48.359 --> 0:23:53.199 I can think of that LGBTQ writs one at the 0:23:53.240 --> 0:23:56.879 Supreme Court was the boss Stock case in twenty twenty. 0:23:57.000 --> 0:23:58.320 Is that the last time. 0:23:58.400 --> 0:24:02.600 I think so, and I think they have really undermined 0:24:02.640 --> 0:24:11.520 their own credibility by so aggressively promoting a particular ideology, 0:24:12.320 --> 0:24:16.200 and to do so at the expense of a marginalized 0:24:16.200 --> 0:24:20.560 community is not to their honor. And let's be clear, 0:24:20.960 --> 0:24:24.240 they get to pick and choose their cases. There was 0:24:24.320 --> 0:24:29.240 nothing that require them to decide this case. I think, 0:24:29.280 --> 0:24:35.119 in addition to its long standing attack on the LGB community. 0:24:35.600 --> 0:24:40.640 I think we also are seeing here a real disparagement 0:24:41.080 --> 0:24:46.439