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Weekend Law: Clancy Mistrial, Trump Ballroom & Pride Flags · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grosso from Bloomberg Radio.
0:09
Speaker 2: At this point, I'm going to declare that the jury
0:12
Speaker 2: is deadlocked, and I'm going to declare a mistrial.
0:16
Speaker 3: After a five-week trial, about 38 hours of jury deliberations
0:21
Speaker 3: over seven days, three notes from the jury saying they
0:25
Speaker 3: were deadlocked, and an emergency appeal to the top court
0:28
Speaker 3: in Massachusetts... Judge William Sullivan declared a mistrial on Friday
0:34
Speaker 3: in the case of Lindsay Clancy, who strangled her three
0:37
Speaker 3: young children in January of 2023. The trial was punctuated
0:43
Speaker 3: by dramatic moments, including the revelation on Thursday that the
0:47
Speaker 3: jurors were deadlocked 11 to 1 in favor of acquitting
0:52
Speaker 3: Clancy and who claimed she wasn't criminally responsible for killing
0:56
Speaker 3: her children because she was suffering from postpartum psychosis. The
1:01
Speaker 3: defense attorney tried to get Judge Sullivan to remove that
1:05
Speaker 3: holdout juror, but the judge refused.
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Speaker 2: I don't feel that it is proper for me to
1:12
Speaker 2: side with one side or the other of the deliberations.
1:17
Speaker 2: I don't feel it's appropriate for me to say I
1:19
Speaker 2: agree with one juror or the 11th.
1:23
Speaker 3: Outside the courthouse, Clancy's lawyer, Kevin Reddington, criticized the district
1:29
Speaker 3: attorney and the holdout juror.
1:32
Speaker 2: They know that they were robbed by one man for
1:36
Speaker 2: whatever his agenda was, who stole seven weeks.
1:42
Speaker 4: Of the life of these other jurors.
1:45
Speaker 3: The Plymouth County District Attorney, Tim Cruz, said they haven't
1:49
Speaker 3: decided whether they'll retry Clancy. But their priority has always
1:54
Speaker 3: been to seek justice for the three children.
1:57
Speaker 4: I bring it all back to the child victims in
2:00
Speaker 4: this case, Cora, Dawson, and Callen.
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Speaker 5: This was and has always been about getting justice for
2:10
Speaker 5: those three little babies.
2:12
Speaker 3: My guest is former federal prosecutor Robert Mintz, a partner
2:16
Speaker 3: at McCarter & English. Bob, the last few days of
2:19
Speaker 3: this trial were really unusual. Have you ever seen a
2:23
Speaker 3: defense attorney basically refusing to accept a deadlocked jury, even
2:30
Speaker 3: going to a higher court to try to get a
2:32
Speaker 3: stay to prevent the judge from declaring a mistrial?
2:37
Speaker 5: It is very unusual in this circumstance because the judge
2:41
Speaker 5: had already questioned the juror and concluded that the juror
2:45
Speaker 5: was not unwilling to follow the law. And at that point,
2:48
Speaker 5: there's really not much more that the judge can do.
2:51
Speaker 5: So to try to seek a stay by the defense
2:54
Speaker 5: here seemed to be rather puzzling because it's hard to
2:57
Speaker 5: imagine exactly what he was trying to accomplish.
3:00
Speaker 3: And the jury had already said they were deadlocked three times.
3:03
Speaker 3: So under Massachusetts law... He couldn't have sent them back
3:07
Speaker 3: to deliberate anymore.
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Speaker 5: No, that's exactly right. And that is what the judge
3:12
Speaker 5: was concerned about, because under Massachusetts law, you can give
3:17
Speaker 5: what's called a dynamite charge or a Rodriguez-Toohey charge, which
3:21
Speaker 5: is basically telling jurors to go back to try to
3:24
Speaker 5: reach a verdict that they have as much information as
3:27
Speaker 5: any other jury might have. and that a lot of
3:30
Speaker 5: time and effort has been invested into the trial, and
3:32
Speaker 5: they should go back and try to see if they
3:34
Speaker 5: can reach a unanimous verdict. But at the same time,
3:37
Speaker 5: the judge will always say that you should not surrender
3:41
Speaker 5: your beliefs, your convictions. And at the end of the day,
3:44
Speaker 5: if there is a disagreement among jurors so that there
3:46
Speaker 5: cannot be a unanimous verdict, then there is a mistrial.
3:50
Speaker 5: And the concern that the judge here had, in this case,
3:52
Speaker 5: no doubt, is that if you continue to put pressure—
3:56
Speaker 5: on a jury where one juror has already taken a
4:00
Speaker 5: position that they can't reach a unanimous verdict and the
4:03
Speaker 5: other jurors agree and you begin to apply excessive pressure
4:08
Speaker 5: to that juror, that creates an issue on appeal because
4:11
Speaker 5: it looks like you're trying to steamroll that one lone
4:14
Speaker 5: juror and try to get them to change their position
4:17
Speaker 5: by applying added pressure to them And that's why the
4:20
Speaker 5: judge can push, but only push so far. And then
4:24
Speaker 5: at some point, the judge has no choice but to
4:26
Speaker 5: declare a mistrial. And that's exactly what happens here.
4:29
Speaker 3: The defense attorney tried to get the judge to remove
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Speaker 3: that one holdout juror after the other jurors said that
4:37
Speaker 3: he wasn't following the law on reasonable doubt. But reasonable
4:41
Speaker 3: doubt is a difficult concept. And obviously, people can disagree
4:47
Speaker 3: about it. That's what a trial is about. How do
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Speaker 3: you knock off a juror in that circumstance?
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Speaker 5: Well, you can't knock a juror off simply because they
4:55
Speaker 5: don't agree with the other jurors and have come to
4:59
Speaker 5: a different conclusion based upon the evidence. What the defense
5:02
Speaker 5: lawyer is trying to argue is that the juror who
5:06
Speaker 5: is the apparent holdout, is simply refusing to follow the
5:11
Speaker 5: law as it's been explained by the judge. Now, we
5:14
Speaker 5: don't know whether that's the case or not, but I
5:17
Speaker 5: suspect that what the judge was doing by questioning the
5:19
Speaker 5: individual jurors was trying to make that determination. And if
5:24
Speaker 5: the holdout is simply a juror who has a strong
5:27
Speaker 5: conviction and is unwilling to be moved by the views
5:32
Speaker 5: of the other jurors, that's not something that will result
5:36
Speaker 5: in that juror being removed from the jury. It would
5:40
Speaker 5: have to be a circumstance where a juror was more
5:43
Speaker 5: or less telling the judge that they were refusing to
5:46
Speaker 5: follow the instructions of the court and And in that instance,
5:50
Speaker 5: it's possible the judge would remove them on that basis.
5:53
Speaker 3: Describe the competing narratives presented by the prosecution and the
5:58
Speaker 3: defense at trial.
6:00
Speaker 5: The question of what would ever drive someone to harm
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Speaker 5: their own children is something that most people really have
6:06
Speaker 5: never had to grapple with and have a difficult time,
6:09
Speaker 5: I think, assimilating as to exactly what would drive somebody
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Speaker 5: to commit that kind of act. And what we see
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Speaker 5: in this case are two very different narratives, both compelling
6:21
Speaker 5: in their own right, where you've got the evidence of
6:24
Speaker 5: a woman according to prosecution, committing this premeditated act where
6:29
Speaker 5: she had told her husband to go out to dinner,
6:33
Speaker 5: to go out to the CVS to pick something up,
6:35
Speaker 5: and according to evidence produced by prosecutors during the trial,
6:40
Speaker 5: she had looked at how long it would take for
6:42
Speaker 5: him to come back. She had been with her children
6:45
Speaker 5: during the day, taking them to doctor's appointments, and basically
6:47
Speaker 5: the prosecution has said that that although she may have
6:51
Speaker 5: a mental illness, she certainly knew what was going on
6:54
Speaker 5: and that this was an act of premeditation and she
6:57
Speaker 5: knew the wrongfulness of her conduct when she committed this crime.
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Speaker 5: The defense, on the other hand, painting a very different
7:04
Speaker 5: picture and really, I think, trying to put the medical
7:07
Speaker 5: system on trial in a certain sense by saying that
7:10
Speaker 5: their client visited a psychiatrist 14 times, tried 13 different medications.
7:17
Speaker 5: She called a suicide hotline. She went to the emergency room.
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Speaker 5: She tried to enroll in an inpatient program. She confided
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Speaker 5: in her husband that she had these thoughts of harming
7:27
Speaker 5: their children. And basically, they are trying to suggest that
7:31
Speaker 5: she did everything she could to try to prevent this
7:33
Speaker 5: from happening. But ultimately, This illness, this rare condition called
7:38
Speaker 5: postpartum psychosis caused her to have these hallucinations where she
7:43
Speaker 5: allegedly heard this male voice telling her to kill her children.
7:48
Speaker 5: And jurors faced the very daunting task here. It's very
7:52
Speaker 5: difficult to try to sift through these two competing narratives
7:57
Speaker 5: of what's happened here to try to listen to the testimony,
8:00
Speaker 5: the medical testimony, the pharmaceutical testimony and the data. the
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Speaker 5: heartbreaking reality of what actually happened here, a mother killing
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Speaker 5: her own three young children, and figure out whether or
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Speaker 5: not this was a premeditated act and that justice is
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Speaker 5: served by sending this woman to prison for the rest
8:19
Speaker 5: of her life or whether she really is suffering from
8:22
Speaker 5: a severe mental illness and she really committed a crime
8:26
Speaker 5: without knowing right from wrong and that the right result
8:29
Speaker 5: is to send her to a psychiatric institute rather than
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Speaker 5: a prison.
8:33
Speaker 3: In Massachusetts, things are sort of flipped around in their
8:37
Speaker 3: version of an insanity defense. Explain how it differs from
8:41
Speaker 3: other states and puts the burden on the prosecution.
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Speaker 5: Massachusetts actually has one of the less restrictive definitions of insanity.
8:52
Speaker 5: The defense here is claiming postpartum psychosis, which in every
8:57
Speaker 5: state is treated like any other insanity defense. And in
9:01
Speaker 5: most cases, defendants must prove that they did not understand
9:05
Speaker 5: what they were doing or they did not know what
9:08
Speaker 5: they were doing was wrong. That's the most stringent standard.
9:12
Speaker 5: Other states have slightly less stringent standards. For example, certain
9:16
Speaker 5: states allow that defendants may have known what they were
9:20
Speaker 5: doing was wrong, but couldn't resist the impulse to do it.
9:23
Speaker 5: Another standard allows juries to consider, but for the defendant's
9:27
Speaker 5: mental defect, the crime would not have occurred. The interesting
9:30
Speaker 5: thing about the law in Massachusetts is that it never
9:33
Speaker 5: shifts the burden onto the defense. All the other standards
9:36
Speaker 5: in most states shift the burden onto the defense to
9:39
Speaker 5: prove they didn't know what they were doing or that
9:41
Speaker 5: they did not know what they were doing was wrong.
9:44
Speaker 5: But in Massachusetts, the burden remains with the prosecution at
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Speaker 5: all times, which makes it more difficult for prosecutors to
9:51
Speaker 5: overcome this defense. And in Massachusetts, it requires prosecutors, not
9:56
Speaker 5: the defense, to prove that a mentally ill defendant retires.
10:00
Speaker 5: the substantial capacity to appreciate the wrongfulness or criminality of
10:04
Speaker 5: their conduct and to conform their conduct to the requirements
10:09
Speaker 5: of the law. So in this case, once that defense
10:12
Speaker 5: is raised by the defense, the burden shifts back to
10:15
Speaker 5: the And in this case, the prosecution tried to do it, again,
10:21
Speaker 5: by proving that the conduct was premeditated and that Ms.
10:26
Speaker 5: Clancy knew what she was doing. She may have been
10:29
Speaker 5: mentally ill. That's conceded by prosecutors. But the standard here
10:34
Speaker 5: is whether or not she knew the wrongfulness and the
10:37
Speaker 5: criminality of her conduct and was unable to conform her
10:40
Speaker 5: conduct to the requirements of the law.
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Speaker 3: The prosecution now knows that they only convinced one holdout juror.
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Speaker 3: But this is such a high-profile case. Do you think
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Speaker 3: they'll retry her?
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Speaker 5: Well, it's highly unlikely a prosecution is simply going to
10:55
Speaker 5: drop the case. That is not going to happen. But
10:57
Speaker 5: what they are going to do is go back and
10:59
Speaker 5: scrutinize the trial, look at the testimony, see how their
11:03
Speaker 5: evidence went in, and see how they can improve on
11:06
Speaker 5: that if there is going to be a second trial.
11:09
Speaker 5: And there will no doubt be some conversation with the
11:12
Speaker 5: defense to see if some plea deal can be reached
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Speaker 5: in order to avoid a second trial, since both sides
11:19
Speaker 5: have a lot to risk if they go to trial again.
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Speaker 3: We may learn more at the next court hearing, which
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Speaker 3: is scheduled for September 29th. Always a pleasure to have
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Speaker 3: you on, Bob. Thanks so much. That's Robert Mintz of
11:31
Speaker 3: McCarter & English. Coming up next on the Bloomberg Law Show,
11:35
Speaker 3: how the Supreme Court's decision to allow Trump's ballroom to
11:39
Speaker 3: go forward imperils other cases over his construction projects. I'm
11:44
Speaker 3: June Grosso, and you're listening to Bloomberg.
11:49
Speaker 2: One thing I know how to do is build.
11:51
Speaker 5: And so we put a brand new face on the
11:54
Speaker 5: front of the White House on the ground.
11:56
Speaker 2: The cars will pull up.
11:58
Speaker 5: And this is what you'd have as opposed.
11:59
Speaker 4: To the asphalt.
12:01
Speaker 3: President Trump has spent much of his second term trying
12:05
Speaker 3: to leave his mark on the White House and throughout D.C.
12:09
Speaker 3: And the White House ballroom has been the centerpiece of
12:12
Speaker 3: that campaign. But it's going to be incredible.
12:15
Speaker 5: It's going to be, aside from being secure, I think
12:18
Speaker 5: it's going to be the most beautiful ballroom I've ever built.
12:20
Speaker 3: And on Monday, five conservatives on the Supreme Court cleared
12:24
Speaker 3: the way for Trump to continue building the ballroom over
12:28
Speaker 3: the dissents of the chief justice and the three liberals
12:31
Speaker 3: and brushing aside conclusions by two lower courts that he's
12:35
Speaker 3: probably violating the law. The majority found that the historic
12:40
Speaker 3: preservation nonprofit that sued to stop the ballroom doesn't have
12:45
Speaker 3: legal grounds or standing to contest the project. The decision
12:49
Speaker 3: presents a new high hurdle for those challenging Trump's other
12:54
Speaker 3: construction projects. In fact, on Thursday, the administration filed a
12:59
Speaker 3: motion to have the lawsuit challenging Trump's 250-foot arch dismissed
13:05
Speaker 3: for standing reasons, citing the Supreme Court's decision on the ballroom.
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Speaker 3: My guest is Tracy Feitlove, founder and executive director of
13:15
Speaker 3: Lawyers for Good Government. Tracy, so the majority on the
13:19
Speaker 3: Supreme Court found that the historic preservation group that sued
13:25
Speaker 3: did not have standing. Tell us more about that.
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Speaker 1: So basically, the court did not rule that President Trump
13:33
Speaker 1: has the authority to build the ballroom. What they did
13:37
Speaker 1: rule is that the particular plaintiffs that initiated this lawsuit
13:42
Speaker 1: are not allowed to challenge it. When you say someone
13:45
Speaker 1: doesn't have the standing, it means they don't have the
13:47
Speaker 1: legal right to challenge a particular action. It does not
13:51
Speaker 1: mean the action that they're challenging was legal.
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Speaker 3: Do you think that the Supreme Court often uses standing
13:58
Speaker 3: as sort of an off-ramp that allows it to avoid
14:02
Speaker 3: making a decision on the merits until it's too late?
14:05
Speaker 2: Yes.
14:06
Speaker 1: Yes, I do think that. And the reason I think
14:08
Speaker 1: that is because there have been too many instances over
14:12
Speaker 1: the years when the court seems to find that someone
14:15
Speaker 1: does have standing if it relates to an issue that
14:17
Speaker 1: they want to see decided in a particular way and
14:20
Speaker 1: someone else doesn't have standing because they don't want to
14:22
Speaker 1: get to the merits of a particular issue. That distinction really,
14:26
Speaker 1: really matters. I mean, when you look at the decision,
14:29
Speaker 1: the only four justices who addressed the legality of the
14:33
Speaker 1: actual ballroom project all concluded that it was likely unlawful.
14:37
Speaker 1: That includes Chief Justice Roberts, who emphasized that Congress has
14:41
Speaker 1: not expressly authorized this construction. So it does seem in
14:45
Speaker 1: this instance that possibly standing was an easy out for them.
14:50
Speaker 3: It's not a typical case where someone is injured and
14:53
Speaker 3: obviously has standing. Do you think it's a harder case
14:57
Speaker 3: to make out standing here than usual?
15:00
Speaker 1: Yeah, this was not clear cut in terms of the
15:03
Speaker 1: standing question. The real issue is when you look at
15:06
Speaker 1: the overarching pattern of decisions about standing. Example, in this case,
15:11
Speaker 1: when they concluded that the National Trust lacked standing, they
15:15
Speaker 1: said it was because the aesthetic or historical injuries that
15:19
Speaker 1: the plaintiffs were asserting were not sufficiently concrete or particularized.
15:23
Speaker 1: But there is other precedent, Supreme Court precedent that has.
15:27
Speaker 4: In some instances.
15:28
Speaker 1: Recognized aesthetic injuries as being sufficient for a standing. For instance,
15:32
Speaker 1: in environmental and conservation cases, when plaintiffs actually use or
15:36
Speaker 1: observe the place or resource that's being affected. So it
15:40
Speaker 1: was a close question. And I think because it could
15:44
Speaker 1: be perceived as close, it gave them the room to
15:48
Speaker 1: maneuver that they wanted in order to not stop the
15:51
Speaker 1: ballroom construction.
15:53
Speaker 3: And we don't often see the Chief Justice in dissent.
15:57
Speaker 3: with the three liberals. How surprising is that?
16:00
Speaker 1: Yeah, I mean, it's, I'll admit, I'm not often surprised
16:04
Speaker 1: anymore at all about what these Supreme Court justices do.
16:08
Speaker 1: But I think it does speak to the fact that
16:11
Speaker 1: this is not a partisan question. The issue of standing
16:15
Speaker 1: was not decided along the basis of who appointed which justice.
16:20
Speaker 1: That means that this issue may have even been closer
16:23
Speaker 1: than the court wants to admit. So I think it's
16:26
Speaker 1: interesting that Justice Roberts actually agreed that the substantive question,
16:32
Speaker 1: the actual question of whether that ballroom was legally being constructed,
16:37
Speaker 1: was probably going to be answered in the negative.
16:41
Speaker 3: The chief justice did write a strong dissent. He wrote
16:45
Speaker 3: that Congress has explicitly prohibited the construction of any building
16:50
Speaker 3: or structure on grounds of the federal government in D.C.
16:55
Speaker 3: without congressional authorization. He also said that the majority's order
17:01
Speaker 3: is no victory for the separation of powers. Now, the
17:04
Speaker 3: court's conservatives have been consistently expanding presidential power. Do you
17:10
Speaker 3: think the chief is suddenly coming to the realization that
17:13
Speaker 3: there is a separation of powers problem?
17:16
Speaker 1: I hope he's realizing it. I don't know if it's
17:18
Speaker 1: sudden or if this is something that he's been willing
17:21
Speaker 1: to accept up until a certain point. But this is
17:24
Speaker 1: fundamentally a story about separation of powers and the rule
17:28
Speaker 1: of law. We can't allow the rule of law to
17:30
Speaker 1: be act first, ask permission later. Standing matters, obviously. But
17:36
Speaker 1: if these procedural barriers are repeatedly preventing anyone from challenging
17:41
Speaker 1: potentially unlawful executive action, then the question is, who can
17:45
Speaker 1: actually hold the president accountable? And are the checks and
17:48
Speaker 1: balances that the Constitution meant to set out really in
17:53
Speaker 1: existence now in a meaningful way?
17:55
Speaker 3: The administration has been doing this over and over again
17:59
Speaker 3: in different areas, you know, deporting people before things can
18:03
Speaker 3: get into court, cutting off funding before things can get
18:07
Speaker 3: into court, firing people before things can get into court,
18:11
Speaker 3: on and on. And, you know, the Supreme Court, except
18:14
Speaker 3: in a couple of instances, tariffs and birthright citizenship has
18:19
Speaker 3: allowed the president to do this.
18:22
Speaker 4: That's correct.
18:23
Speaker 1: This court has shown a remarkable unwillingness to hold the
18:28
Speaker 1: executive branch accountable to the constitutional limits that it is
18:33
Speaker 1: meant to operate within. I'm running out of words to
18:36
Speaker 1: describe how dangerous it is to be in a situation
18:40
Speaker 1: where the actions of the executive branch are not being
18:44
Speaker 1: effectively checked or challenged by either of the other two branches.
18:49
Speaker 1: But that is the situation we have found ourselves in.
18:52
Speaker 3: Obviously, the administration is making the argument that the president
18:55
Speaker 3: has the authority to build this ballroom. But is there
18:58
Speaker 3: any convincing legal authority or precedent that contradicts what the
19:04
Speaker 3: lower courts have ruled, which is that a project like
19:07
Speaker 3: this needs congressional approval? In other words, do the plaintiffs
19:11
Speaker 3: have a really strong argument about Congress's role here?
19:17
Speaker 2: Yes.
19:17
Speaker 1: I mean, the the circuit court that ruled on this
19:20
Speaker 1: issue expressly said that Congress has constitutional authority over federal
19:25
Speaker 1: property and that it was a problem that Congress had
19:27
Speaker 1: not authorized this project. And the Supreme Court did not
19:31
Speaker 1: find otherwise. All the Supreme Court really said was that
19:35
Speaker 1: this particular plaintiff couldn't challenge it.
19:38
Speaker 3: What I also find a little puzzling is that usually
19:41
Speaker 3: you have an injunction that will preserve the status quo
19:45
Speaker 3: as a lawsuit goes on. But this is an injunction
19:48
Speaker 3: that is allowing. the ballroom to go forward. It's already
19:52
Speaker 3: 65 percent built. And by the time this gets back,
19:56
Speaker 3: if it ever does to the Supreme Court. it'll likely
19:59
Speaker 3: be done. So it's not preserving the status quo.
20:03
Speaker 1: No, it is not. And I personally, although I cannot
20:07
Speaker 1: read the justices' minds, I can't obviously speak for them,
20:11
Speaker 1: but it doesn't seem to me that the court as
20:13
Speaker 1: a whole is really trying to manage or maintain the
20:18
Speaker 1: status quo here. It's pretty clear to me that they're
20:22
Speaker 1: very willing to allow the construction to proceed, understanding that
20:26
Speaker 1: that means it will be nearly impossible to undo and
20:28
Speaker 1: that effectively the president has just been granted the authority
20:32
Speaker 1: to do what he should not have the authority to do.
20:36
Speaker 3: This administration mentions national security. It seems to me in
20:40
Speaker 3: almost every argument there's a national security reason. I mean,
20:47
Speaker 3: did the majority here actually buy that there's a national
20:51
Speaker 3: security reason for this ballroom? That was something that wasn't
20:55
Speaker 3: mentioned until well after the construction started. In fact, President
21:00
Speaker 3: Trump wanted to build a ballroom at the White House
21:03
Speaker 3: during Barack Obama's administration. So building the ballroom came first
21:08
Speaker 3: and then claims of national security reasons.
21:11
Speaker 1: National security is one of those phrases that the administration
21:15
Speaker 1: likes to throw out there because they believe that it
21:18
Speaker 1: grants them almost unlimited powers. It's an easy way for
21:22
Speaker 1: them to make the argument that they should be allowed
21:24
Speaker 1: to do whatever they want to do. And because they're
21:27
Speaker 1: unilaterally making these declarations of when there is or isn't
21:31
Speaker 1: a national emergency, it's very hard to put any checks
21:33
Speaker 1: on that. And that's exactly why they use that phrase
21:36
Speaker 1: so often. There is nothing inherently national security related to
21:40
Speaker 1: a ballroom. I understand that there is meant to be
21:43
Speaker 1: something constructed underneath the new ballroom that may be relevant
21:46
Speaker 1: to national security. But that's a separate question.
21:49
Speaker 3: Trump is trying to remake D.C. in different ways. He
21:52
Speaker 3: keeps trying to put his name up on the Kennedy Center.
21:56
Speaker 3: I mean, we have the reflecting pool. He wants to
21:58
Speaker 3: build this arch. Will this decision by the Supreme Court
22:02
Speaker 3: lead him to start building the arch? Is the arch next?
22:07
Speaker 2: It could be.
22:08
Speaker 1: Like I said about the justices, I can't understand or
22:11
Speaker 1: predict what happens inside the mind of this president or
22:15
Speaker 1: his colleagues. But it does seem that the precedent here
22:20
Speaker 1: has been set in a way that establishes for practical purposes,
22:24
Speaker 1: if the president is willing to move quickly enough, he
22:27
Speaker 1: will be allowed to get away with it. And that
22:29
Speaker 1: means we need Congress to step up and be willing
22:33
Speaker 1: to do its job. If the Supreme Court is unwilling
22:36
Speaker 1: to put any meaningful checks on the authority of this president,
22:40
Speaker 1: the only branch of government left that is capable of
22:43
Speaker 1: doing that is Congress.
22:45
Speaker 3: Do you think that other groups can try to sue
22:47
Speaker 3: over the ballroom or it's too late for that?
22:51
Speaker 1: I mean, it's theoretically possible that another group could try.
22:55
Speaker 1: My hunch is that the litigators, the lawyers who brought
23:00
Speaker 1: this suit, did their best to find the plaintiff that
23:02
Speaker 1: they thought would be most likely to have standing. But
23:05
Speaker 1: is it possible that there's another group out there that
23:08
Speaker 1: might be deemed to have standing?
23:11
Speaker 6: It's possible.
23:11
Speaker 1: I think it's unlikely that that will happen.
23:14
Speaker 3: It seems like this decision will open up challenges from
23:18
Speaker 3: the administration to a lot of these lawsuits to try
23:23
Speaker 3: to stop Trump's construction projects. For example, it's two preservationist
23:29
Speaker 3: organizations that have challenged plans to paint the granite exterior
23:34
Speaker 3: of the 19th century Eisenhower Executive Office building, and the
23:39
Speaker 3: National Trust and other preservationist and heritage organizations have also
23:44
Speaker 3: challenged the planned renovations to the Kennedy Center. So this
23:49
Speaker 3: Supreme Court decision on the ballroom may have wide-ranging implications.
23:54
Speaker 3: Thanks so much for joining me, Tracy. That's Tracy Feitlove,
23:59
Speaker 3: founder and executive director of Lawyers for Good Government, coming
24:03
Speaker 3: up next on the Bloomberg Law Show. The Second Circuit
24:06
Speaker 3: rules that high school teachers in a Long Island, New
24:09
Speaker 3: York public school don't have free speech rights to hang
24:13
Speaker 3: pride flags in their classrooms. I'm June Grosso, and you're
24:17
Speaker 3: listening to Bloomberg. Should high school teachers be able to
24:22
Speaker 3: hang pride flags on the walls of their classrooms or
24:26
Speaker 3: put up pride stickers? That question became a federal case
24:30
Speaker 3: when three teachers took a Long Island, New York public
24:34
Speaker 3: high school to court for ordering the removal of those
24:37
Speaker 3: pride flags and stickers.
24:39
Speaker 6: These teachers had flags and stickers as pride. They weren't
24:44
Speaker 6: using the classroom as a pulpit to lecture. They weren't
24:46
Speaker 6: even incorporating it into their classroom curriculum.
24:50
Speaker 7: It's very clear that the plaintiffs don't have a First
24:56
Speaker 7: Amendment right to decorate their classroom walls with personal political symbols.
25:04
Speaker 3: Their case ended up at the Second Circuit Court of Appeals,
25:08
Speaker 3: where the attorney for the teachers, Cheryl Berger, argued that
25:12
Speaker 3: the pride flags and stickers constituted the teachers' speech, protected
25:17
Speaker 3: by the First Amendment, while the attorney for the school district,
25:21
Speaker 3: Brian Sokoloff, argued that the classroom decorations constituted speech of
25:26
Speaker 3: the teachers in their official duties as government employees.
25:31
Speaker 6: When the teachers had their flags and stickers displayed here,
25:35
Speaker 6: it was just a demonstration of pride. They're not displaying
25:39
Speaker 6: it towards imparting or foisting any messaging upon the students.
25:44
Speaker 7: Her speech, the flag, uttered as part of her job
25:49
Speaker 7: is not protected by the First Amendment.
25:52
Speaker 3: The Second Circuit unanimously sided with the school district. and
25:56
Speaker 3: upheld the lower court's dismissal of the lawsuit. Joining me
26:00
Speaker 3: is First Amendment expert Timothy Zick, a professor at William &
26:04
Speaker 3: Mary Law School. Tim, is there a general rule for
26:08
Speaker 3: what can be put up in public school classrooms?
26:11
Speaker 4: I mean, there are lots of cases about student speech, right?
26:15
Speaker 4: So I'm thinking of the Supreme Court, which has decided
26:17
Speaker 4: a number of cases about the sort of scope of
26:19
Speaker 4: student speech rights. So this involves faculty or teachers, right?
26:24
Speaker 4: And their rights, free speech rights, as they pertain to,
26:27
Speaker 4: in this case, the classroom, but not the curriculum, but
26:32
Speaker 4: instead the sort of blackboards or bulletin boards and walls
26:36
Speaker 4: and doors and those sorts of things and what they
26:38
Speaker 4: put on them. There is no hard and fast rule. Right.
26:42
Speaker 4: And certainly there's no Supreme Court case that's about these
26:46
Speaker 4: specific facts. So what the Second Circuit is doing is
26:50
Speaker 4: it's applying a sort of doctrine that applies to the
26:53
Speaker 4: free speech rights of public employees generally. And these are
26:56
Speaker 4: high school teachers, math teachers and others. And it's their
27:01
Speaker 4: speech that's at issue. So that's what the court is doing.
27:05
Speaker 4: So in some sense, it's addressing a novel issue.
27:09
Speaker 3: The teachers here made several arguments. First, they argued that
27:14
Speaker 3: ordering the removal of the flags and stickers violated their
27:19
Speaker 3: free speech rights.
27:20
Speaker 4: Yeah, so they argued that the pride flags were a
27:24
Speaker 4: form of what's called symbolic conduct or expressive conduct that
27:28
Speaker 4: conveyed their political speech. These are people who are out
27:33
Speaker 4: as gay individuals. So their argument was, you know, by
27:36
Speaker 4: forcing us to take these things down, That violates our
27:40
Speaker 4: free speech rights. And they added, you know, there's a
27:43
Speaker 4: sort of discriminatory element to this because you're not making
27:45
Speaker 4: people take down other things from the walls. So you're
27:49
Speaker 4: singling us out based on, they allege in their complaint, viewpoint.
27:55
Speaker 4: And the court rejected that argument entirely, rejected all their arguments.
27:59
Speaker 4: But that one in particular implicates this idea of, you know,
28:03
Speaker 4: the speech rights of public employees. And there's a case
28:07
Speaker 4: called Garcetti. And that's a Supreme Court case the court's
28:10
Speaker 4: relying on the most. And in Garcetti, there was an
28:13
Speaker 4: assistant district attorney who was writing memos for search warrants.
28:19
Speaker 4: And he came across a warrant that was problematic. And
28:22
Speaker 4: he brought that to his boss's attention in a sort
28:24
Speaker 4: of whistleblower way. And he was sanctioned or disciplined for that.
28:28
Speaker 4: And he said, well, it violates my free speech rights
28:31
Speaker 4: to discipline me for that speech. And the court's answer was,
28:35
Speaker 4: When the public employee creates speech as part of their
28:38
Speaker 4: so-called professional duties, when the speech owes its existence to
28:43
Speaker 4: the job itself, when they go to work, these are
28:45
Speaker 4: different ways the court phrased it, when they go to
28:47
Speaker 4: work and they create speech that they're being paid to create,
28:51
Speaker 4: like the memo in Garcetti, then the First Amendment just
28:54
Speaker 4: flies out the window. It just doesn't apply to that
28:56
Speaker 4: speech at all. So whether you're arguing it's just a
28:59
Speaker 4: straight up, you know, you're taking down my protected speech
29:02
Speaker 4: or you're discriminating based on viewpoint, None of those arguments
29:06
Speaker 4: go anywhere if the speech essentially belongs to the employer.
29:11
Speaker 4: And that's where the court lands. It says, you know,
29:13
Speaker 4: that speech on the walls and on the doors is,
29:17
Speaker 4: in essence, part of curricular speech. And the First Amendment
29:21
Speaker 4: doesn't restrict the public employer, the school administrators, the principals,
29:26
Speaker 4: when they deal with and restrict that kind of speech.
29:30
Speaker 4: So that's what happened to their free speech claims. And
29:32
Speaker 4: everything else just sort of flows from that.
29:34
Speaker 3: The Supreme Court has ruled that students have free speech
29:38
Speaker 3: rights at school.
29:39
Speaker 5: Oh, yes.
29:40
Speaker 4: So the court in a case called Tinker back in
29:42
Speaker 4: the 1960s said that students do not shed their free
29:47
Speaker 4: speech rights at the schoolhouse gates. And in that case,
29:51
Speaker 4: the students were wearing black armbands to protest the Vietnam
29:54
Speaker 4: War and they were disciplined, punished for wearing them in
29:57
Speaker 4: violation of school policy. And the court said, You can't
30:00
Speaker 4: discipline these students. The First Amendment protects their political dissent
30:05
Speaker 4: unless what they're doing creates a material and substantial disruption
30:10
Speaker 4: in the classroom or with respect to the school's functions.
30:14
Speaker 4: So it's clear that students don't shed their First Amendment rights.
30:17
Speaker 4: And this court, the Second Circuit, says neither do teachers.
30:20
Speaker 4: We're just saying this speech in particular is not protected speech.
30:25
Speaker 4: And they drew a distinction between the things the teachers
30:28
Speaker 4: are putting on the walls and the doors and say
30:32
Speaker 4: a pride flag lapel pin or a photograph of their
30:35
Speaker 4: same-sex spouse. Those, the court said, are likely protected speech.
30:40
Speaker 4: That's not something the employer owns or has plenary control over.
30:45
Speaker 4: But when it comes to creating a classroom environment, which
30:49
Speaker 4: is how the court characterized this speech, the employer controls.
30:53
Speaker 3: The teachers also claimed that they were denied equal protection.
30:57
Speaker 4: Yeah, so part of that is being singled out based
31:01
Speaker 4: on the sort of viewpoint of the speech, but they
31:03
Speaker 4: also allege they were singled out because they're gay. And
31:07
Speaker 4: the court said there's nothing in the complaint that sort
31:11
Speaker 4: of sheds any light on a claim of so-called animus.
31:16
Speaker 4: In other words, you haven't alleged any facts that would
31:18
Speaker 4: support the claim that this policy was the result of
31:23
Speaker 4: or was purposefully discriminatory against against a class of individuals
31:27
Speaker 4: based on that characteristic, sexual orientation. So the equal protection claim,
31:31
Speaker 4: they said, is also dismissed, as the district court dismissed it.
31:35
Speaker 4: They're just upholding the district court. Then they made some
31:38
Speaker 4: sort of human rights claims, sort of discriminatory claims under
31:42
Speaker 4: federal law and state law. And those went the way
31:45
Speaker 4: of the discrimination claim that I just discussed.
31:48
Speaker 3: I mean, do you think this is a solid opinion?
31:50
Speaker 4: I mean, it applies faithfully, I think, what the court
31:53
Speaker 4: said in Garcetti. With regard to public employees, I mean,
31:56
Speaker 4: some might think it's a bit of a stretch to
31:58
Speaker 4: say what goes on the walls is part of the curriculum.
32:01
Speaker 4: So it's pretty clear there that, you know, district officials
32:06
Speaker 4: and others would have control at the high school level,
32:09
Speaker 4: at least, or elementary school level over what's taught. But
32:13
Speaker 4: Extending that to what goes on the walls, you know,
32:16
Speaker 4: some might think stretches things a bit, or as the
32:18
Speaker 4: court characterized it, creating a classroom environment. I suppose in
32:22
Speaker 4: a math classroom, one might expect to see equations or
32:26
Speaker 4: great figures in math from history or something like that.
32:30
Speaker 4: That seems to be the sense in which the court's saying, no, no, no,
32:33
Speaker 4: this speech is all about a classroom environment. When teachers
32:36
Speaker 4: put things up in the classroom environment, That's being done
32:40
Speaker 4: pursuant to their job responsibilities. And that is something that
32:44
Speaker 4: the employer can control. And I guess, you know, if
32:47
Speaker 4: you think about it, that would make sense. You know,
32:49
Speaker 4: if that weren't the case, then all kinds of political
32:54
Speaker 4: speech could go up on the walls, right? You could
32:56
Speaker 4: have MAGA speech or anti-MAGA speech. And teachers could claim, well,
33:00
Speaker 4: that's all, you know, part of my political expression. And
33:05
Speaker 4: so I think pragmatically it's persuasive, right? And probably with
33:10
Speaker 4: respect to Garcetti too. The one thing that concerns, you know,
33:14
Speaker 4: academics like myself is Garcetti's application to instructor's speech in
33:19
Speaker 4: the classroom. Because if Garcetti is taken literally, it would
33:24
Speaker 4: mean that my teaching and my scholarship are also controlled
33:28
Speaker 4: by my employer because that's what I get paid to
33:31
Speaker 4: go to work and do. And so in Garcetti, the
33:34
Speaker 4: court sort of punts that issue. It says we're not
33:36
Speaker 4: addressing in this case what happens with respect to university
33:40
Speaker 4: professors or presumably graduate professors who have academic freedom and
33:44
Speaker 4: tenure and those sorts of things. So they kind of
33:46
Speaker 4: put that aside. This is not that case either. These
33:49
Speaker 4: are high school teachers and they don't have the same
33:52
Speaker 4: protections as university professors. But, you know, it's just another
33:56
Speaker 4: place where this Garcetti case has sort of shown up
33:59
Speaker 4: or popped up. And it extinguishes free speech claims. And
34:04
Speaker 4: to some people, that's disturbing enough.
34:07
Speaker 3: Is this a unique case, a novel case? Have you
34:10
Speaker 3: heard of anything similar to this across the country?
34:13
Speaker 4: I haven't heard anything about walls and doors. But there's
34:16
Speaker 4: certainly been questions about, you know, assignments that teachers might
34:21
Speaker 4: give to students or how they grade them. You know,
34:24
Speaker 4: the contours of this kind of doctrine in the high
34:28
Speaker 4: school and elementary context is just not clear. You know,
34:31
Speaker 4: I think I've come across some cases about clothing or
34:34
Speaker 4: jewelry or lapel pins or religious symbols, those sorts of things.
34:39
Speaker 4: But this is just a sort of unique factual context,
34:42
Speaker 4: I think.
34:43
Speaker 3: Tim, before I let you go, I wanted to ask
34:45
Speaker 3: you about the First Amendment issues being raised in a
34:48
Speaker 3: lawsuit by two media organizations. against President Trump over this
34:54
Speaker 3: subscription service that's charging up to $ 100, 000 a month for
35:00
Speaker 3: priority access to Trump's true social posts.
35:05
Speaker 4: You know, putting aside securities laws and other laws that
35:08
Speaker 4: this may violate, the news organizations, the nonprofits are alleging
35:12
Speaker 4: in their complaint that when you offer this kind of
35:16
Speaker 4: early access or exclusionary access to some but not others,
35:21
Speaker 4: you violated their right to receive information. In this case,
35:26
Speaker 4: governmental information. So there is under the First Amendment a
35:28
Speaker 4: right to receive, not just a right to speak. And
35:31
Speaker 4: they're invoking that right as news organizations that follow his posts.
35:36
Speaker 4: Some even analyze his posts.
35:38
Speaker 1: Right.
35:39
Speaker 4: And so they're making that argument. They're also arguing that.
35:42
Speaker 4: The posts that the president puts up on Truth Social
35:45
Speaker 4: are what are called public fora. And that argument is,
35:49
Speaker 4: you know, you can limit speech in a public forum,
35:52
Speaker 4: this kind of resource, but you have to meet sort
35:54
Speaker 4: of requirements, right? There has to be some kind of
35:57
Speaker 4: important governmental interest, and you have to narrowly tailor whatever
36:01
Speaker 4: restriction you have and leave open ample alternative channels for
36:05
Speaker 4: receiving the speech. And they say it fails that test,
36:07
Speaker 4: the sort of time, place, and manner test. And then
36:10
Speaker 4: they make a final argument that says this is an
36:12
Speaker 4: unconstitutional condition. It's essentially extortionate. You're making a benefit available,
36:18
Speaker 4: but on an unconstitutional grounds because the news organizations say
36:22
Speaker 4: we can't afford it. And even if we could, we
36:25
Speaker 4: wouldn't compromise our objectivity and our professionalism by signing on
36:30
Speaker 4: as subscribers.
36:31
Speaker 3: Trump media defended the service, saying the information is technically public.
36:37
Speaker 3: And no different from subscription APIs offered by other major
36:42
Speaker 3: media platforms.
36:44
Speaker 4: Well, they keep ignoring that the president is different and
36:47
Speaker 4: that his official participation in this scheme, I'll call it,
36:51
Speaker 4: makes this a constitutional issue.
36:54
Speaker 3: We'll wait to see how they answer the complaint. Thanks
36:56
Speaker 3: so much, Tim. That's Professor Timothy Zick of William &
36:59
Speaker 3: Mary Law School. And that's it for this edition of
37:02
Speaker 3: the Bloomberg Law Show. Remember, you can always get the
37:05
Speaker 3: latest legal news on our Bloomberg Law Podcast. You can
37:08
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37:17
Speaker 3: Law Show every weeknight at 10 p.m. Wall Street time.
37:21
Speaker 3: I'm June Grosso, and you're listening to Bloomberg.