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Hate Speech Is Free Speech · Bloomberg Law

• 0:02
  Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
• 0:09
  Speaker 2: US Attorney General Pam Bondi threatened to go after hate
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  Speaker 2: speech on a podcast last week. We will absolutely target you,
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  Speaker 2: go after you if you are targeting anyone with hate
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  Speaker 2: speech anything, and that's across the aisle. Bondy was wrong.
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  Speaker 2: Hate speech is not a crime. In fact, hate speech
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  Speaker 2: is free speech protected by the First Amendment. Just ask
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  Speaker 2: the Supreme Court. Conservative Justice Samuel Alito wrote in twenty seventeen, quote,
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  Speaker 2: the proudest boast of our free speech jurisprudence is that
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  Speaker 2: we protect the freedom to express the thought that we hate.
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  Speaker 2: Bondi's remarks true criticism across the political spectrum, and she
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  Speaker 2: tried to walk them back with some confusing posts on
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  Speaker 2: x is. First Amendment expert Timothy Zick, a professor at
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  Speaker 2: William and Mary Law School, Tim, can you define hate
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  Speaker 2: speech for US?
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  Speaker 3: Well, it doesn't have a definition in US law or
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  Speaker 3: First Amendment jurisprudence. There's no category of hate speech that
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  Speaker 3: is unprotected under the First Amendment. That's in contrast to
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  Speaker 3: European countries and other countries that do have statutory prescriptions
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  Speaker 3: on speech that derrigates or criticizes people based on gender
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  Speaker 3: or race or some other protected characteristic, but if the
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  Speaker 3: Attorney General should know. In the United States in general,
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  Speaker 3: hate speech is not criminally prescribable.
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  Speaker 2: The Supreme Court has protected hate speech in more than
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  Speaker 2: one case. The one that stands out in my mind
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  Speaker 2: is Brandenburg versus Ohio, the case involving the Nazi Party
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  Speaker 2: marching in Skokie, Illinois, in nineteen seventy seven.
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  Speaker 3: Well, the Supreme Court, in that case and others, has
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  Speaker 3: come down on the side of freedom of expression right
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  Speaker 3: in the sense that the government cannot criminalize or otherwise
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  Speaker 3: punish the expression of viewpoints, even if those viewpoints are
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  Speaker 3: offensive or vile or derogatory. Right, So, even speach in
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  Speaker 3: support of Nazism, this is a general matter protected speech.
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  Speaker 3: Speech that offends people based on race, or gender or
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  Speaker 3: sexual orientation, that's also protected speech. And the Supreme Court
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  Speaker 3: has been consistent in drawing that line where it has
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  Speaker 3: in the sense that you know, whether it's Nazis marching
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  Speaker 3: in skoki that case reached the Supreme Court is actually
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  Speaker 3: a lower court case that decided, Look, the town of
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  Speaker 3: Skokey cannot enact all these ordinances to try and prevent
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  Speaker 3: Nazis from marching or displaying Nazi regalia. The Supreme Court
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  Speaker 3: protects viewpoints even if they're vile. There are some narrow exceptions, right,
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  Speaker 3: If you threaten another person's bothering or death, if you
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  Speaker 3: incite other people to engage in imminent unlawful activity that's
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  Speaker 3: likely to occur, those sorts of things are not protected.
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  Speaker 3: The government cannot have the power to tell an audience
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  Speaker 3: in the United States what speech is appropriate or too
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  Speaker 3: offensive to be heard.
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  Speaker 2: But the Court has recognized an exception to the First
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  Speaker 2: Amendment for threats of violence. How are they defined?
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  Speaker 3: That's a narrow exception to First Amendment protection. Right, So
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  Speaker 3: if you communicate what the Court is defined as a
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  Speaker 3: serious expression of an intent to inflict bodily harm or
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  Speaker 3: death on another person, then you can be punished for
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  Speaker 3: that kind of speech. But the narrowness here is sort
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  Speaker 3: of like, you know, it has to be a serious expression.
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  Speaker 3: It can't be something said in jets. It can't be
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  Speaker 3: hyperbolic language where you say, well, this person should be
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  Speaker 3: home for their crimes, right, that sort of thing. It
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  Speaker 3: has to be more directed, more specific, and as a
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  Speaker 3: Supreme has recently said uttered recklessly that you know there's
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  Speaker 3: a risk when you say the words that a person
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  Speaker 3: will perceive what you're saying is threatening, but you say
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  Speaker 3: it anyway. So it's not just threatening language. That's not
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  Speaker 3: unprotected speech. It's something far more specific than that. And
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  Speaker 3: when the Attorney General said, well, what I meant to say,
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  Speaker 3: it wasn't hate speech, really, it was threat Well, none
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  Speaker 3: of the speech that we've been talking about since Charlie
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  Speaker 3: Kirk's assassination, you know, constitutes threats. Right when you praise
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  Speaker 3: or celebrate someone's death, that's not a threat. So you know,
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  Speaker 3: she got it wrong twice. Essentially.
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  Speaker 4: She also said in her explanation, you can't call for
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  Speaker 4: someone's murder. You cannot swat a member of Congress, you
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  Speaker 4: cannot dos a conservative family and think it will be
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  Speaker 4: brushed off as free speech. These acts are punishable crimes,
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  Speaker 4: and every single threat will be met with the full
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  Speaker 4: force of the law.
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  Speaker 2: Are all the things she mentioned punishable.
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  Speaker 3: Well, some of them are protected, right. It depends on
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  Speaker 3: the sort of statute that you're looking at, you know,
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  Speaker 3: how narrowly it's defining harassment, for example, or threat calling
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  Speaker 3: for the murder of someone is not incitement. It is
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  Speaker 3: not a threat.
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  Speaker 1: Right.
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  Speaker 3: I wish you know so and so would die is
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  Speaker 3: a terrible thing to think, a terrible thing to say.
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  Speaker 3: But it's not unprotected expression under our First Amendment doctrines
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  Speaker 3: and jurisprudence. Yes, there's conduct that you can go after.
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  Speaker 3: If I repeatedly harass someone, whether it's online or offline,
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  Speaker 3: then that can rise to the level of harassment. But
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  Speaker 3: there I'm not being punished for my expression. I'm being
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  Speaker 3: punished for the act of repetitious harassment of another. And
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  Speaker 3: docting is difficult, right, because just publishing information about, say,
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  Speaker 3: where someone lives, is not necessarily unprotected speech, right. A
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  Speaker 3: lot depends on the contact. And again, as they said,
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  Speaker 3: it's statute under which you're reviewing it.
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  Speaker 2: And wasn't there a Supreme Court case a few years
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  Speaker 2: ago involving threats on the internet.
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  Speaker 3: Counterman versus Colorado. Yeah, that was this very recent threats
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  Speaker 3: case the Supreme Court handed down. There was a singer
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  Speaker 3: who had some uninvited online messages, tried to block the
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  Speaker 3: person from contacting her. He just opened new accounts and
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  Speaker 3: kept contacting her, and eventually this person was prosecuted for
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  Speaker 3: form of harassment, which is really what the case sort
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  Speaker 3: of set up as, but the court below and then
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  Speaker 3: the Supreme Court treated it as raising the question of
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  Speaker 3: whether this person had communicated we are called true threats,
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  Speaker 3: as I described earlier, serious expressions of an intent to
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  Speaker 3: cause bodiling, injury or death to another. And what the
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  Speaker 3: court was wrestling with in that piece is the mental
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  Speaker 3: state of the speaker. Well, how do I know whether
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  Speaker 3: the person's communicating a threat? And they say, if the
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  Speaker 3: person knows of a substantial risk that the person he
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  Speaker 3: is communicating with is when it perceives the speech is threatening,
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  Speaker 3: then that's the kind of recklessness that the First Amendment
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  Speaker 3: requires before you label something a true threat. So the
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  Speaker 3: court was grappling with a really important sort of technical
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  Speaker 3: issue in that case, which was a mental state required
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  Speaker 3: for the speaker, and a number of courts before that
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  Speaker 3: had sort of adopted this subjective test. Well, if I'm
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  Speaker 3: the audience for that speech and I perceive it subjectively
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  Speaker 3: is threatening, that should be enough. And the court was worried, well,
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  Speaker 3: that's not speech protective enough. That's going to cause misunderstandings
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  Speaker 3: to be translated into criminalized threats. We don't want that,
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  Speaker 3: but we also don't want a sort of lower standard,
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  Speaker 3: so let's find something in the middle, sort of a
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  Speaker 3: goldilocked standard. And they settled on recklessness.
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  Speaker 4: And so the Supreme Court has been would you say,
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  Speaker 4: particularly protective of free speech rights?
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  Speaker 3: I think that's its reputation right. I could probably come
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  Speaker 3: up with exceptions to that, but in general, I think
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  Speaker 3: it's fair to say that they're protective of freedom of speech.
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  Speaker 1: Yet we have, you.
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  Speaker 4: Know, the Attorney General's remarks. We had Todd Blanche, the
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  Speaker 4: Deputy Attorney General, said in an interview that people protesting
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  Speaker 4: while President Trump had dinner at a restaurant might have
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  Speaker 4: committed a crime. You have President Trump saying to ABC
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  Speaker 4: news reporter will probably go after people like you because
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  Speaker 4: you treat me so unfairly. It's hate. Why is there
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  Speaker 4: this misunderstanding of hate speech?
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  Speaker 3: Well, I don't know if it's a misunderstanding. I mean
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  Speaker 3: this has been sort of President Trump's a longstanding position.
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  Speaker 4: Right.
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  Speaker 3: He either doesn't understand or doesn't appreciate freedom of expression.
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  Speaker 3: So his view is that negative press isn't protected. You
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  Speaker 3: can pull the broadcast license of a broadcaster that publishes
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  Speaker 3: critical coverage of him. It consistingly negative right, That, of course,
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  Speaker 3: is contrary to the First Amendment. Going after your political
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  Speaker 3: enemies for things that they say is part of the
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  Speaker 3: sort of Trump mantra, but it is unconstitutional. And you
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  Speaker 3: know what's interesting to me is recently people have said, oh,
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  Speaker 3: we've crossed some line here where the president is threatening
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  Speaker 3: retribution at this political enemy. We are nine months into
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  Speaker 3: a retribution campaign. It's gotten louder, but it's been there
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  Speaker 3: the whole time. I mean they've gone after law firms,
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  Speaker 3: international students, the American Bar Association, and plenty of others
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  Speaker 3: up to this point. What's different is it's more explicit,
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  Speaker 3: I suppose one could say, and the drumbeat is getting louder.
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  Speaker 3: We're going to go after particularly so called left leaning
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  Speaker 3: speakers or organizations who say things that we don't like,
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  Speaker 3: and the First Amendment stands in complete opposition to that position.
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  Speaker 3: So what's changed. I mean, the kirk assassination horrific event,
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  Speaker 3: bound to create, you know, sort of turn and backlash,
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  Speaker 3: but the administration's answer to that has been again, we're
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  Speaker 3: going to go after the left so called and we're
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  Speaker 3: going to punish speakers who say nasty things about Charlie
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  Speaker 3: Kirk or President Trump, and the First Amendment just simply
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  Speaker 3: doesn't allow them to do that.
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  Speaker 2: Coming up next on the Bloomberg Lawn Show, I'll continue
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  Speaker 2: this conversation with Professor Timothy Zick of William and Mary
• 10:30
  Speaker 2: Law School. People across the country, from teachers and lawyers
• 10:34
  Speaker 2: to airline pilots and healthcare workers, have been fired, suspended,
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  Speaker 2: or disciplined over social media posts about Charlie Kirk and
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  Speaker 2: his death. Why the First Amendment doesn't protect them. In
• 10:47
  Speaker 2: other legal news, today, the Supreme Court said it will
• 10:50
  Speaker 2: hear a Trump administration appeal that could topple a ninety
• 10:55
  Speaker 2: year old president and put the White House in control
• 10:58
  Speaker 2: of federal agencies that have long been independent. The Court's
• 11:03
  Speaker 2: conservative majority also refuse to let the person at the
• 11:07
  Speaker 2: center of the case, Federal Trade Commission Member Rebecca Kelly Slaughter,
• 11:11
  Speaker 2: returned to her job during the appeal. Trump is trying
• 11:15
  Speaker 2: to fire Slaughter despite a law that says commissioners can
• 11:19
  Speaker 2: be removed only for specified reasons. The showdown gives conservatives
• 11:24
  Speaker 2: and regulation opponents the chance to achieve a long sought
• 11:28
  Speaker 2: goal of overturning the Supreme Court's nineteen thirty five ruling.
• 11:33
  Speaker 2: And remember you can always get the latest legal news
• 11:36
  Speaker 2: by listening to our Bloomberg Law podcast wherever you get
• 11:39
  Speaker 2: your favorite podcasts. I'm June Grosso and this is Bloomberg.
• 11:43
  Speaker 2: Last week, Vice President j D Vance encouraged people to
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  Speaker 2: report anyone celebrating Charlie Kirk's murder to their employers.
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  Speaker 1: So when you see someone celebrating Charlie's murder, call them
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  Speaker 1: out in hell, call their employer.
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  Speaker 3: We don't believe in political violence, but we do believe
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  Speaker 3: in civility.
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  Speaker 2: And across the country, people have been fired, suspended, or
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  Speaker 2: disciplined over social media posts about Kirk, from teachers and
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  Speaker 2: lawyers to airline pilots and healthcare workers. Many employers have
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  Speaker 2: cracked down on remarks they deem inappropriate. I've been talking
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  Speaker 2: to Professor Timothy Zick of William and Mary Law School.
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  Speaker 3: The rules are different for private and government speakers. Right,
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  Speaker 3: So if you're talking about a private employee and at
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  Speaker 3: will employee who can be dismissed for any reason at
• 12:34
  Speaker 3: all or no reason, then they can be dismissed for
• 12:38
  Speaker 3: speech that they publish or communicate. There are only a
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  Speaker 3: few states where you get some statutory protection for political speech,
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  Speaker 3: but in general, you speak at your peril. With respect
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  Speaker 3: to private employment, public employment is very different. Public employees
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  Speaker 3: retain some First Amendment rights as citizens to speak on
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  Speaker 3: what are called matters of public concern newsworthy matters, which
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  Speaker 3: certainly covers the speech that has been sort of debated
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  Speaker 3: a post Charlie Kirks murder. And it's complicated. Right, So,
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  Speaker 3: if you're a public employee and you say something offensive,
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  Speaker 3: Let's say you praise Charlie Kirks murder, and you're a
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  Speaker 3: university professor, let's say, and your employer says, well, I'm
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  Speaker 3: going to terminate your employment. Well, putting aside the sort
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  Speaker 3: of tenure and academic freedom problems there, as a public employee,
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  Speaker 3: you have a First Amendment right to communicate that. Let
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  Speaker 3: the Supreme Court has said, what you get as a
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  Speaker 3: public employee if you speak on matters of public concern
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  Speaker 3: is a balance. We're going to balance your right to
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  Speaker 3: speak against the employer's interest in efficient operations. So across
• 13:54
  Speaker 3: a range of public employment, what you might find in
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  Speaker 3: some cases is that courts will side with the employer.
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  Speaker 3: What you said was so offensive it created disruption in
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  Speaker 3: the workplace, and we're not required to tolerate that. The
• 14:07
  Speaker 3: first women doesn't require that we tolerate that. So it
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  Speaker 3: can be complicated to respect the public employment, but it's
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  Speaker 3: much simpler with regard to private.
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  Speaker 4: The Supreme Court has taken a lot of cases involving
• 14:19
  Speaker 4: the Trump administration on the emergency docket, but none of
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  Speaker 4: them that I can recall, involved a free speech issue.
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  Speaker 4: Are you confident that the Court, if one of these
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  Speaker 4: cases on hate speech came up to the court, that
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  Speaker 4: they would stick by their precedent.
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  Speaker 3: I think they would. I think, you know, the likelihood
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  Speaker 3: of the Court taking a First Amendment case out of
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  Speaker 3: what i'll call the Trump two point zero era, it's
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  Speaker 3: relatively high. It's not clear yet what the administration intends
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  Speaker 3: to do with respect to so called hate speech investigations
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  Speaker 3: or prosecutions. It's mostly what they're doing is threatening to
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  Speaker 3: investigate people for core political speech. We wouldn't even be
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  Speaker 3: talking about hate speech. It would be more you know,
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  Speaker 3: I'm going to go after George Soros organization because it
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  Speaker 3: supports left wing positions or its funds left wing political
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  Speaker 3: activistm what's clearly unconstitutional. I don't even know if the
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  Speaker 3: Supreme Court would be interested in a case like that.
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  Speaker 3: I'm assuming a lower court would say that's unconstitutional. But
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  Speaker 3: there are cases in the First Amendment realm that may
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  Speaker 3: make it to the Court, some of them involving maybe
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  Speaker 3: the rights of non citizens under the First Amendment, which
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  Speaker 3: the Court has been unclear about if they want to
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  Speaker 3: clarify that. Some of the university cases, the Harvard case,
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  Speaker 3: for example, or the administration is the terminating funds the
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  Speaker 3: university says based on their speech, and the Court may
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  Speaker 3: be interested in that. Or maybe there'll be a press
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  Speaker 3: case who knows and involving a broadcast license or something
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  Speaker 3: like that. I can imagine the Court being interested in
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  Speaker 3: those cases.
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  Speaker 4: In those cases that you've mentioned, for example, the Harvard case,
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  Speaker 4: let's just take one. Is it difficult to prove that
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  Speaker 4: the administration is going after Harvard because of its speech?
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  Speaker 3: Well, the administration is its own worst enemy with regard
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  Speaker 3: to so called retaliation claims. Right, So one of the
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  Speaker 3: things you asked is, well, why did the Trump administration
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  Speaker 3: target Harvard for termination of funds? And let's add the
• 16:27
  Speaker 3: other ten investigations to Harvard and faith it can be
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  Speaker 3: hard to prove, right, because the administration to that said, oh, no,
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  Speaker 3: we did that because of anti semitism on campus. And
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  Speaker 3: you start looking into that and say, well, you never
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  Speaker 3: help an investigation. You never found any facts. She didn't
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  Speaker 3: follow the law. What I'm left with is, you know,
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  Speaker 3: public statements by the Education Secretary not to mention the
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  Speaker 3: President of the United States that what we need to
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  Speaker 3: do is bring these universities to heal because they're too liberal,
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  Speaker 3: because their culture is too liberal, it's too less leaning.
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  Speaker 3: Well that gives it away, I assuming you can take
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  Speaker 3: the president's communications into account, but even if you can't,
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  Speaker 3: the Education Secretary has said this is what conservatives they
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  Speaker 3: wanted to do for a long time, to sort of
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  Speaker 3: lean on these universities who are indoctrinating students as the
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  Speaker 3: left wing ideology. So it's all very explicit. Right in
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  Speaker 3: other contexts, and say past administrations or different governments, it
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  Speaker 3: might not have been so explicit, but they're very, very transparent.
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  Speaker 3: I think the Trump administration about what they're trying to do.
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  Speaker 2: ABC is putting the Jimmy Kimmel Show back on the
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  Speaker 2: air tomorrow night. But would you say that FCC Chair
• 17:38
  Speaker 2: Brendan Carr's statements about Kimmel would fit into that category
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  Speaker 2: you were just describing.
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  Speaker 3: The difficulty here is that Brendan Carr, the chair of
• 17:49
  Speaker 3: the Federal Communications Commission, went on a podcast and threatened
• 17:55
  Speaker 3: ABC if it didn't do something. He said, we can
• 17:59
  Speaker 3: do this the easy way or the hard way, and
• 18:03
  Speaker 3: he's clearly threatening their broadcast license or at least the
• 18:05
  Speaker 3: licenses of their affiliates. That's who holds the licenses. So
• 18:10
  Speaker 3: the government inserts itself. It's another one of these examples
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  Speaker 3: where you know, ordinarily it might be difficult to say
• 18:16
  Speaker 3: what role, if any of the government played. Well, here
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  Speaker 3: he is on podcasts telling you I'm going to abuse
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  Speaker 3: the fpc's authority by jaw owning and threatening licensed affiliates.
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  Speaker 3: But for speech that we think we the Trump administration
• 18:32
  Speaker 3: think is offensive with regard to Charlie Kirk, Now they
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  Speaker 3: pitched this sort of misinformation or he got it wrong.
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  Speaker 3: Plenty of people got the facts wrong the early going
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  Speaker 3: with respect to Kirk's assailants, So that doesn't single Jimmy
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  Speaker 3: Kimmel out right. So there's sort of this sort of agenda,
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  Speaker 3: particularly in the broadcast realm, by Brendan Carr, the SPC
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  Speaker 3: and other agencies to come down on broadcasters in the
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  Speaker 3: press and to do so explicitly because of their coverage,
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  Speaker 3: whether it's their editorial decisions they make as reporters or
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  Speaker 3: in this case, comments about a matter of public concerns.
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  Speaker 3: And it's inconsistent with law, federal law for the FCC
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  Speaker 3: to intervene in that respect, and it violates the First Amendments.
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  Speaker 2: And are there other business interests at work in these
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  Speaker 2: cases as well?
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  Speaker 3: And there's another twist to this, there's another layer. And
• 19:33
  Speaker 3: when you talked about the affiliates who do hold the licenses,
• 19:37
  Speaker 3: the corporations that own those affiliates, one of them has
• 19:40
  Speaker 3: a big merger application pending with the Trump administration. And
• 19:43
  Speaker 3: guess what I really want that merger to go through.
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  Speaker 3: I better play ball. I better do it the easy way.
• 19:51
  Speaker 3: So it's layers of leverage here. It's not just brending cars,
• 19:55
  Speaker 3: you know, mouthing off about you know, easy way or
• 19:57
  Speaker 3: hard way. It's behind the scenes. You've got people who
• 20:00
  Speaker 3: are interested in big time corporate mergers with these affiliates,
• 20:07
  Speaker 3: and their concern is, boy, I better not across some
• 20:11
  Speaker 3: line if I can figure out where it is with
• 20:14
  Speaker 3: regard to the Trump administration, or I won't get my
• 20:16
  Speaker 3: merger and that's already happened. Paramounts is the other example there. Right,
• 20:21
  Speaker 3: they did it the easy way, They played ball and
• 20:25
  Speaker 3: they got their merger through. So it's it's very it's
• 20:31
  Speaker 3: very mafia like as people have described it. Right, boy,
• 20:34
  Speaker 3: this is a really nice restaurant of the shame if
• 20:36
  Speaker 3: you lose, if you lost it. It's kind of like that,
• 20:42
  Speaker 3: but even more explicit. But you're right, of course, you know,
• 20:44
  Speaker 3: when it comes to comedy, people have been scuring presidents
• 20:49
  Speaker 3: for you know, since we've had television and even before,
• 20:54
  Speaker 3: and they haven't been punished for it. We are any different,
• 20:57
  Speaker 3: darker place with regard to freedom of expression in the
• 21:01
  Speaker 3: United States.
• 21:02
  Speaker 2: And tell us about the repository you're keeping all these
• 21:06
  Speaker 2: lawsuits concerning the First Amendment.
• 21:10
  Speaker 3: It's that First Amendment watch, so they're hosting it. So
• 21:14
  Speaker 3: what I've done is I've taken all of the executive
• 21:17
  Speaker 3: orders that relate to freedom of expression. So I've got
• 21:20
  Speaker 3: all of those organized on the site by subject matter,
• 21:25
  Speaker 3: and then i have litigation with regard to the executive
• 21:29
  Speaker 3: orders and also Trump's lawsuits against the press. So all
• 21:32
  Speaker 3: the litigation and the pleatings and then commentary broadly speaking, right,
• 21:37
  Speaker 3: some of its legal commentary, some of it's what I
• 21:40
  Speaker 3: read in the press. Right, I can't capture everything, but
• 21:44
  Speaker 3: if I see something and I have people sending the
• 21:46
  Speaker 3: item and neches in the repository as well, and of
• 21:50
  Speaker 3: course with regard to the Charlie Kirk murder in the
• 21:55
  Speaker 3: fallout from that, it's that's its own avalanche of stuff.
• 21:58
  Speaker 3: You know. The media is quite rightly focused on it,
• 22:01
  Speaker 3: but there is a lot of commentary and you can
• 22:03
  Speaker 3: really miss things that are going on. For example, and
• 22:09
  Speaker 3: I'm doing this now on substack because I need another outlet,
• 22:12
  Speaker 3: a district court just invalidated the National Endowment for the
• 22:16
  Speaker 3: Arts process for reviewing grant applications because they were weeding
• 22:20
  Speaker 3: them out based on whether they can they promoted gender ideology.
• 22:24
  Speaker 3: So there's another sort of viewpoint based unconstitutional Trump administration policy.
• 22:31
  Speaker 3: The zone is just so flooded. They are pressing First
• 22:35
  Speaker 3: Amendment boundaries on purpose. They want to see how far
• 22:38
  Speaker 3: they can go, and even when they lose in court,
• 22:41
  Speaker 3: I think they just say, well, shrug. It serves its
• 22:45
  Speaker 3: purpose anyway, because we're scaring people, we're chilling them. They're
• 22:49
  Speaker 3: going to self censor. I think that's happening to the press.
• 22:52
  Speaker 3: You know when I read headlines, and there are times
• 22:54
  Speaker 3: they keep changing them and they get friendlier and friendlier
• 22:58
  Speaker 3: to sort of right wing the almost as a way
• 23:01
  Speaker 3: to sort of say, don't look over here. Well, they
• 23:03
  Speaker 3: get sued anyway. The New York Times just got sued
• 23:07
  Speaker 3: for ten billion dollars fifteen billion. I forget that ridiculous number,
• 23:11
  Speaker 3: as did Penguin Press, because essentially they didn't report accurately
• 23:15
  Speaker 3: how popular Trump is.
• 23:17
  Speaker 2: Didn't a judge throw out that lawsuit?
• 23:20
  Speaker 3: Well, he threw it out preliminarily, right, your complaint has
• 23:23
  Speaker 3: to be succinct and state your claims, and it shouldn't
• 23:28
  Speaker 3: be full of you know, basically all the lathering of
• 23:31
  Speaker 3: Trump that this one was. So he gave him another chance.
• 23:34
  Speaker 3: He said, you know, you have about a month to
• 23:37
  Speaker 3: turn in a complaint that meets the Rule eight of
• 23:41
  Speaker 3: the Federal Rules of Civil Procedure, which says here's what
• 23:44
  Speaker 3: a complaint should include and nothing further. So, yeah, he
• 23:48
  Speaker 3: threw it out, but it'll come back. But I think
• 23:50
  Speaker 3: eventually Trump will lose if he loses every one of
• 23:54
  Speaker 3: these cases. And again I don't think the point is
• 23:56
  Speaker 3: to win the case. He doesn't need the money, He
• 23:58
  Speaker 3: hasn't suffered reputational damage, but wants to be sued for
• 24:01
  Speaker 3: fifteen billion dollars. You still have to defend yourself, and
• 24:05
  Speaker 3: if you can bring a settlement out of The New
• 24:07
  Speaker 3: York Times and or Penguin, all the better.
• 24:10
  Speaker 2: A lot more papers for your repository. Tim thanks so much.
• 24:14
  Speaker 2: That's Professor Timothy Zick of William and Mary Law School.
• 24:17
  Speaker 2: Coming up next. Parents are suing alleging that AI chatbots
• 24:21
  Speaker 2: are responsible for the suicides of their teenagers. This is bloomberg.
• 24:27
  Speaker 2: In the United States, more than seventy percent of teenagers
• 24:32
  Speaker 2: have used AI chatbots for companionship, and half used them regularly,
• 24:37
  Speaker 2: according to a recent study from common Sense Media and
• 24:41
  Speaker 2: last week, parents whose teenagers committed suicide after interactions with
• 24:47
  Speaker 2: artificial intelligence chatbots testified to Congress about the dangers of
• 24:52
  Speaker 2: the technology, and several parents have sued the companies behind
• 24:57
  Speaker 2: chatbots over the suicides of their teenage Joining me is
• 25:01
  Speaker 2: Colin Walkee, a cybersecurity and data privacy partner at hall Estel. Colin.
• 25:07
  Speaker 2: The latest lawsuit was filed by the parents of a
• 25:11
  Speaker 2: thirteen year old who committed suicide and it starts invisible
• 25:16
  Speaker 2: Monsters entered the home of Juliana Peralta in or around
• 25:20
  Speaker 2: August twenty twenty three, when she was only thirteen years old.
• 25:25
  Speaker 2: Tell us about this lawsuit well.
• 25:29
  Speaker 1: In particular, the allegations are is that over the next
• 25:34
  Speaker 1: year or so, while the child was interacting with the
• 25:37
  Speaker 1: AI chatbot, that it was not providing good advice in
• 25:44
  Speaker 1: terms of mental health and was acting as a friend
• 25:46
  Speaker 1: and actually helped assist it and kind of coerce, if
• 25:50
  Speaker 1: you will, this child to commit suicide. And so the
• 25:55
  Speaker 1: lawsuit asserts that, in short, the AI chatbot facilitating her
• 26:01
  Speaker 1: suicide and the company should be held responsible for.
• 26:04
  Speaker 2: This is not the first suit by parents connecting their
• 26:09
  Speaker 2: teenagers suicide to chatbots. How many of these wrongful death
• 26:14
  Speaker 2: lawsuits are there so far?
• 26:16
  Speaker 1: So there are at least three or four that I
• 26:18
  Speaker 1: am aware of, filed in various jurisdictions, and all of
• 26:21
  Speaker 1: the allegations are very similar and in fact, in one
• 26:25
  Speaker 1: particular instance, the child suggested leaving the news out on
• 26:30
  Speaker 1: his desk so that someone would try and stop him,
• 26:34
  Speaker 1: and the chatbot allegedly said, no, don't do that we
• 26:37
  Speaker 1: want this room to be the first place where someone
• 26:39
  Speaker 1: finds you. So you can see how this type of
• 26:43
  Speaker 1: AI is certainly not helping the individual in that particular circumstance.
• 26:48
  Speaker 1: And the thing is June is that we've known for
• 26:51
  Speaker 1: a long time that AI chatbots are not going to
• 26:54
  Speaker 1: tell us what we need to hear. They're going to
• 26:55
  Speaker 1: tell us what we want to hear. And that's the
• 26:58
  Speaker 1: most concerning part about this. That or unleashing products not
• 27:01
  Speaker 1: just to the public grid large, but to youth and
• 27:04
  Speaker 1: children without any true testing or guardrails being done to
• 27:09
  Speaker 1: ensure child's safety.
• 27:10
  Speaker 2: In the case of a California teenager, the father apparently
• 27:15
  Speaker 2: knew that his son had made previous suicide attempts. So
• 27:19
  Speaker 2: where does the parents' responsibility to monitor their teenagers fit
• 27:23
  Speaker 2: in this picture?
• 27:25
  Speaker 1: You hit upon a fantastic point, which is there is
• 27:28
  Speaker 1: absolutely a role for parental responsibility. I think there are
• 27:32
  Speaker 1: two problems in this particular case. The first problem that
• 27:36
  Speaker 1: you have is technological ignorance. Most parents don't understand how
• 27:40
  Speaker 1: their cell phone works, how their social media works, let
• 27:43
  Speaker 1: alone how AI works. And yet at the same time,
• 27:46
  Speaker 1: parents are allowing their children to utilize it. Just like
• 27:49
  Speaker 1: parents themselves are utilizing it again without understanding how it works.
• 27:54
  Speaker 1: But I think the second thing that you have to
• 27:55
  Speaker 1: think about here is that this is perfectly synonymous with
• 27:59
  Speaker 1: the development of social media. Right, So it's the very
• 28:02
  Speaker 1: beginning social media didn't test necessarily what the long term
• 28:07
  Speaker 1: consequences would be by developing algorithms that just fed us
• 28:11
  Speaker 1: what we wanted to see over time. They could have
• 28:15
  Speaker 1: changed that, but they knew that that would get into
• 28:17
  Speaker 1: their profit margin and they don't want to do that. Right.
• 28:20
  Speaker 1: It's the same thing here. We could be responsible and
• 28:24
  Speaker 1: test these products and tweak them in such a way
• 28:27
  Speaker 1: that hopefully they're a lot more secure and safe both
• 28:31
  Speaker 1: for adults and children than what we have, but instead,
• 28:35
  Speaker 1: because that would hurt profits, we've gone ahead and unleashed
• 28:38
  Speaker 1: all of this onto the market, expecting individuals to know
• 28:41
  Speaker 1: about the dangers, to know about the consequences. How many
• 28:44
  Speaker 1: parents using Life three sixty knew that I could go
• 28:47
  Speaker 1: on the internet and buy their children's geolocation data and
• 28:50
  Speaker 1: find out where their children are at. Very few people
• 28:52
  Speaker 1: knew that, and yet that was an exploitation. Same thing
• 28:55
  Speaker 1: here with AI. What parents believe their AI may be
• 28:59
  Speaker 1: saying to their children, or even particular chats that they
• 29:02
  Speaker 1: look up may not be everything that the AI is saying.
• 29:05
  Speaker 1: And how do you know which AI programs necessarily that
• 29:07
  Speaker 1: child is accessing on the animal. So you're right, there
• 29:10
  Speaker 1: is absolutely a role for reneral responsibility, but unfortunately this
• 29:14
  Speaker 1: technology has developed so quickly that most parents are ignorant
• 29:17
  Speaker 1: to the problems in the first place.
• 29:19
  Speaker 2: Can you sort of summarize where the law stands on
• 29:23
  Speaker 2: liability for AI right now?
• 29:26
  Speaker 1: What you're seeing with regard to any type of liability
• 29:29
  Speaker 1: in AI, whether it's copyright law, whether it's injuries individuals,
• 29:32
  Speaker 1: tesla vehicles, those sorts of things, one of the questions
• 29:36
  Speaker 1: is is are you the company who puts this out there,
• 29:38
  Speaker 1: responsible for that? So, for example, in this social media world,
• 29:42
  Speaker 1: we all know about section two thirty, and Section two
• 29:44
  Speaker 1: thirty says that Facebook is not liable for what individuals
• 29:47
  Speaker 1: post on their platform, So the same question might apply here.
• 29:51
  Speaker 1: Is it the case that Session two thirty could at
• 29:54
  Speaker 1: least in theory, begin to apply to AI and prohibit liability.
• 30:00
  Speaker 1: At the end of the day, everybody owes a duty
• 30:02
  Speaker 1: to other individuals to avoid harm, and so the question
• 30:06
  Speaker 1: will ultimately come down did these companies adequately test these
• 30:10
  Speaker 1: AI programs to determine their potential threats of harm and
• 30:14
  Speaker 1: did they adequately warn the public about those before they
• 30:17
  Speaker 1: were used.
• 30:18
  Speaker 2: One of the biggest AI platforms, Open Ai says parental
• 30:23
  Speaker 2: controls are going to be added to chat GPT within
• 30:26
  Speaker 2: the next month. But does that count against them in
• 30:29
  Speaker 2: a lawsuit because you know, too little, too late.
• 30:33
  Speaker 1: No doubt a lawyer may try and get that in
• 30:35
  Speaker 1: as evidence, and it might also be excluded as evidence
• 30:37
  Speaker 1: of the medial measures. But we all know that we
• 30:40
  Speaker 1: live in the twenty first century where you know, information
• 30:43
  Speaker 1: is spread all about and I'm quite confident people are
• 30:45
  Speaker 1: going to learn about this before there's ever a trial
• 30:47
  Speaker 1: on it. And the point being is is that even
• 30:51
  Speaker 1: if that particular issue was excluded, everyone knows that these
• 30:56
  Speaker 1: types of protocols can be put in place pre deployment.
• 31:00
  Speaker 1: It's just a choice of whether or not they want
• 31:01
  Speaker 1: to take the time to do that. And because everybody
• 31:04
  Speaker 1: wants their AI to be the first and latest so
• 31:07
  Speaker 1: that everybody starts using it, no one's incentivized to actually
• 31:13
  Speaker 1: adequately test and put in appropriate protocols. Because again, if
• 31:16
  Speaker 1: you limit what the AI is going to provide as
• 31:19
  Speaker 1: a response to somebody that's not going to give them
• 31:21
  Speaker 1: what they want. Just like if I go on to
• 31:24
  Speaker 1: you know, Facebook, and I don't like what I'm seeing,
• 31:27
  Speaker 1: the algorithm is going to give me more of what
• 31:28
  Speaker 1: I want to see. And so we're driving towards the
• 31:32
  Speaker 1: world in which the incentive is towards profits and giving
• 31:35
  Speaker 1: people what they want, not doing the right thing and
• 31:37
  Speaker 1: giving people the correct information.
• 31:39
  Speaker 2: What would the parents in these cases have to prove?
• 31:43
  Speaker 1: Well, depending on the allegations, I mean you could again
• 31:45
  Speaker 1: we're having to pigeonhole all these concepts into common laws theories.
• 31:49
  Speaker 1: And so under the negligence theory, which is the simplest,
• 31:52
  Speaker 1: the most straightforward theory, is that they owed a reasonable
• 31:55
  Speaker 1: duty of care to all of their customers to ensure
• 31:58
  Speaker 1: that their chatbot was reasonably safe. And then the question
• 32:01
  Speaker 1: is is did the company breach that duty and if so,
• 32:05
  Speaker 1: was the company the proximate cause? Okay, So, for example,
• 32:09
  Speaker 1: in this particular case, we may be able to say
• 32:12
  Speaker 1: that chat GPT said go check out the hotline, please
• 32:16
  Speaker 1: call that. Maybe then if the proximate cause for that
• 32:21
  Speaker 1: individual suicide could be cut off at that point in
• 32:24
  Speaker 1: time by chat GPT and another approximate cause i e.
• 32:28
  Speaker 1: His own volition or something that happened that day at
• 32:31
  Speaker 1: school or any number of things could become the proximate
• 32:34
  Speaker 1: cause and they could still avoid liability. So the planet
• 32:37
  Speaker 1: will have to show that there is a duty, which
• 32:39
  Speaker 1: I think is probably easy enough to prove. And then,
• 32:41
  Speaker 1: of course the last hurdle is is is the company
• 32:44
  Speaker 1: actually responsible for what the AI produces? Knowing that the
• 32:47
  Speaker 1: AI is inherently problematic, who doesn't know at this stage
• 32:51
  Speaker 1: the AI hopeens today? So there is a bit of
• 32:54
  Speaker 1: a user beware angle to this case.
• 32:56
  Speaker 2: What causes someone to commit suicide? There are often and
• 33:00
  Speaker 2: a host of reasons. It's not so simple, and so
• 33:03
  Speaker 2: I'm wondering how difficult it will be to prove that
• 33:08
  Speaker 2: the chatbot was responsible.
• 33:10
  Speaker 1: That's absolutely correct, but I don't think that it diminishes
• 33:13
  Speaker 1: the company's responsibilities in the first place, right. I mean, so,
• 33:17
  Speaker 1: for example, while I can't think of one off the
• 33:19
  Speaker 1: top of my head, I'm confident that there were lawsuits
• 33:22
  Speaker 1: in Spacebook, Meta Instagram, you know, as a result of
• 33:26
  Speaker 1: self harm from children. I don't know where those ever went,
• 33:29
  Speaker 1: but the point is is that companies are knowingly putting
• 33:33
  Speaker 1: products onto the market that our government is too incompetent
• 33:37
  Speaker 1: or too unwilling to regulate, and so therefore we have
• 33:41
  Speaker 1: products in the market that are potentially dangerous and that
• 33:46
  Speaker 1: the population is not adequately educated on. And so really
• 33:50
  Speaker 1: the onus shouldn't be on the population who is trying
• 33:54
  Speaker 1: to figure out what this technology does. It should be
• 33:56
  Speaker 1: on the technologists who created it. Just like in the
• 33:59
  Speaker 1: oil and gas industry, do you drill an oil and
• 34:01
  Speaker 1: gas well and it leaked, it's your responsibility. Yes, it's
• 34:04
  Speaker 1: an inherently dangerous operation, but you know what, that's your responsibility.
• 34:08
  Speaker 1: And we need that type of regulation and that type
• 34:12
  Speaker 1: of mindset to make sure that the public is safe
• 34:14
  Speaker 1: when using AI chatlock.
• 34:16
  Speaker 2: So which agency would be responsible for regulations in this
• 34:20
  Speaker 2: area or would it take a law?
• 34:22
  Speaker 1: Well, the law would be the best part. But because
• 34:25
  Speaker 1: we are literally in an AI arms race with China
• 34:28
  Speaker 1: and every other country in the world, I don't see
• 34:30
  Speaker 1: that happening. The FTC can and does currently regulate AI
• 34:35
  Speaker 1: under Section five of the FTC Act. In short, what
• 34:39
  Speaker 1: that says is that companies can't put out their falls
• 34:43
  Speaker 1: from its leading products, and so there are cases where
• 34:49
  Speaker 1: the FTC is postured at least to be able to
• 34:52
  Speaker 1: enforce you know, these types of issues. At the end
• 34:56
  Speaker 1: of the day, will they probably not, especially under this
• 34:59
  Speaker 1: ADMIN because again, there is so much incentive to allow
• 35:04
  Speaker 1: this type of development that no one and I put
• 35:07
  Speaker 1: that in air quotes, no one wants to see this regulated.
• 35:10
  Speaker 1: And I think there's a safer way to do the
• 35:12
  Speaker 1: AI development without posing the threat of harm to the community,
• 35:16
  Speaker 1: which is simply, hey, we all stop at chat GPT
• 35:18
  Speaker 1: four for public releases and everything else gets developed, you know,
• 35:22
  Speaker 1: within DHARPA or behind closed doors within the company itself.
• 35:26
  Speaker 1: We the public doesn't need access to this type of
• 35:30
  Speaker 1: information as soon as it's ready.
• 35:32
  Speaker 3: To be released.
• 35:32
  Speaker 2: I think it was last month that forty four state
• 35:34
  Speaker 2: attorneys general warned eleven companies that run AI chatboxes that
• 35:40
  Speaker 2: they would quote answer for it if their products harm children.
• 35:43
  Speaker 2: Has anything been done by state attorneys general?
• 35:47
  Speaker 1: Not to my knowledge, And to that point, great, what
• 35:51
  Speaker 1: are you going to do, because at the end of
• 35:54
  Speaker 1: the day, you state attorneys generals have limited resources. So
• 35:57
  Speaker 1: for example, in California, you know there are also trying
• 36:00
  Speaker 1: to enforce data privacy laws to their consumer protection agency
• 36:04
  Speaker 1: out there. We all know that we have limited funds,
• 36:07
  Speaker 1: limited resources, and our ags are battling multiple fronts all
• 36:11
  Speaker 1: at the same time, and so if they're going to
• 36:13
  Speaker 1: go up against multi billion dollar companies like Meta or
• 36:18
  Speaker 1: Open Ai, they're going to have a lot of long,
• 36:21
  Speaker 1: uphill battle. And I assure you, by the time that
• 36:24
  Speaker 1: legislation or that lawsuit were resolved, we'd have a whole
• 36:27
  Speaker 1: new slew of AI problems on our hands, and so
• 36:31
  Speaker 1: it'd be a lot too little, too late.
• 36:33
  Speaker 2: You're right, it's hard to keep up with all of it.
• 36:35
  Speaker 2: Thanks so much, Colin. That's Colin Walkee of haul Estell,
• 36:40
  Speaker 2: and that's it for this edition of The Bloomberg Law Show.
• 36:42
  Speaker 2: Remember you can always get the latest legal news on
• 36:45
  Speaker 2: our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify,
• 36:49
  Speaker 2: and at www dot Bloomberg dot com, slash podcast Slash Law,
• 36:55
  Speaker 2: and remember to tune into The Bloomberg Law Show every
• 36:57
  Speaker 2: weeknight at ten pm Wall Street. I'm June Grosso and
• 37:02
  Speaker 2: you're listening to Bloomberg.
• 37:06
  Speaker 1: Mm hmm.