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Proposals to Ban Naturalized Judges & NFL's Hail Mary Pass · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
0:08
Speaker 2: A group of retired federal judges is speaking out against
0:12
Speaker 2: the latest attack on US citizens who weren't born in
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Speaker 2: this country. Republican Representative Pete stauborough Minnesota has introduced legislation
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Speaker 2: that requires all federal judges to be born in this country,
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Speaker 2: and Representative Nancy Mace of South Carolina has introduced joint
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Speaker 2: resolutions proposing a constitutional amendment to require not only judges,
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Speaker 2: but also senators, representatives, and other federal officers to be
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Speaker 2: natural born US citizens. Keep our Republic's Article three Coalition,
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Speaker 2: a group of retired federal judges appointed by presidents from
0:53
Speaker 2: both parties, says the proposals are contrary to the nation's
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Speaker 2: constitutional tradition and that judges should be evaluated by their integrity, judgment,
1:04
Speaker 2: and fidelity to the law, not by their place of birth.
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Speaker 2: Joining me as a member of the Article three Coalition,
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Speaker 2: Judge Jeremy Foegel, formerly of the District Court for the
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Speaker 2: Northern District of California. Judge Fogel, what do you think
1:18
Speaker 2: is the genesis of these proposals, especially the proposal for
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Speaker 2: a constitutional amendment by Representative Mace.
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Speaker 3: There were two decisions in cases having to do with
1:29
Speaker 3: immigration that were made by judges who were naturalized citizens,
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Speaker 3: and she and various other people criticized those decisions because
1:38
Speaker 3: they were adverse to immigration policies they supported. And in
1:43
Speaker 3: the course of criticizing the decisions, they pointed out that
1:46
Speaker 3: the judges were not native born citizens. One is Judge
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Speaker 3: Supman in Illinois and then Judge Tahwany in Massachusetts. And
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Speaker 3: the statement was, well, what do you expect is they
2:01
Speaker 3: weren't born here. They don't understand. I mean, that's why
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Speaker 3: they're ruling against these immigration policies that we support. So
2:08
Speaker 3: that was what happened, and I think the reaction on
2:12
Speaker 3: the part of our group was, you know, you can
2:15
Speaker 3: criticize decisions all you want. That's people's constitutional right. It's
2:19
Speaker 3: free speech, and it's entirely appropriate. But to attack individual
2:23
Speaker 3: judges because of where they were born and what their
2:26
Speaker 3: heritage is is really pretty it's really out of bound.
2:30
Speaker 3: And it happened right around the fourth of July. You know.
2:33
Speaker 3: So we have the celebration of our independence in two
2:38
Speaker 3: hundred and fifty years of independence and the Constitution which
2:41
Speaker 3: we're going to be celebrating in September, and I think
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Speaker 3: it just kind of provoked a real strong reaction among
2:46
Speaker 3: our retired judges groups. We just wanted to say something.
2:49
Speaker 3: You know, it's not that we have any fear that
2:52
Speaker 3: this resolution or the other one are actually going to
2:54
Speaker 3: get passed by Congress, but there was just something that
2:57
Speaker 3: was so fundamentally offensive about statements, and so that was
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Speaker 3: what prompted. And you know, the way our coalition works,
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Speaker 3: we sometimes will just circulate statements to judges and they
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Speaker 3: can join or not. This was one where we said,
3:13
Speaker 3: we want to speak on behalf of the entire coalition,
3:15
Speaker 3: all fifty eight judges, and we just want to give
3:19
Speaker 3: everyone an opportunity to weigh in and suggest that that's
3:22
Speaker 3: are too object or whatever the case may be. And
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Speaker 3: I think since we've been organized and working together, which
3:28
Speaker 3: has been about a year and a half, that this
3:31
Speaker 3: may have been the easiest group statement to get signatures
3:34
Speaker 3: for it. There was a real sense that this was
3:36
Speaker 3: just not okay, and you know, it's important that we
3:39
Speaker 3: speak up as retired judges about it. And I think
3:42
Speaker 3: it's also a way of supporting the judges involved. It's
3:45
Speaker 3: not expressing agreement or disagreement with their decisions, but just
3:48
Speaker 3: they don't deserve to be attacked on that basis. And
3:51
Speaker 3: you know, when we did a little research, it's interesting
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Speaker 3: that we look at the judges the article three judges
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Speaker 3: who have served since the founding of the public and
4:01
Speaker 3: were naturalized citizens. It's a pretty impressive list, and it
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Speaker 3: has no relationship to political gideology. Some of the most
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Speaker 3: prominent ones have been notably conservative, some of the other
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Speaker 3: ones who's been prominent liberal, and so there's no orientation
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Speaker 3: that attaches to being a naturalized citizen. It's just just
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Speaker 3: so we've had a lot of very distinguishers that have
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Speaker 3: been Do you.
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Speaker 2: Think they're looking at the fact that, you know, the
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Speaker 2: Constitution says the president has to be born here and
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Speaker 2: they're saying, well, let's make that judges and every member
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Speaker 2: of Congress too.
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Speaker 3: That actually cuts both ways, because when the founders wrote
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Speaker 3: the Constitution, they certainly were thinking about that, and in
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Speaker 3: seventeen eighty seven they could have very easily said, well,
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Speaker 3: you know, we want all of our elected and prominent
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Speaker 3: officials to be native born, and they didn't. They just
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Speaker 3: they just said that they wanted the president to be
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Speaker 3: and we did not include judges, they did not include
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Speaker 3: members of Congress, and you know, it's not like it
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Speaker 3: wasn't on their minds and they made a decision. So
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Speaker 3: I think we've lived with it for two hundred and
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Speaker 3: fifty years, and you know, it's it's almost a cliche
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Speaker 3: to say this is you know, this is a nation
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Speaker 3: of immigrants that's been built by immigrants, and naturalized citizens
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Speaker 3: have contributed immensely to the country in just a multitude
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Speaker 3: of ways, and so I think seizing on that is
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Speaker 3: probably not a good idea because the history is that
5:20
Speaker 3: the founders had that qualification in mind and chose not
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Speaker 3: to include the judiciary and members of concresce. So, you know,
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Speaker 3: I don't think that these proposals are going anywhere. I
5:28
Speaker 3: just think the fact that they were even floated was
5:32
Speaker 3: something that especially given that we're celebrating the two and
5:34
Speaker 3: fiftieth anniversary of the Declaration, you know, it's good to
5:38
Speaker 3: remember what our principles are in the country, and this
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Speaker 3: one the idea that this is a country which welcomes
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Speaker 3: and this has nothing to do with controversies about legal
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Speaker 3: immigration or illegal immigration, or with immigration policy ought to be.
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Speaker 3: We've always had people coming to our country and looking
5:55
Speaker 3: for ways to make lives here. And you know, we
5:58
Speaker 3: have robust debates about what our laws ought to be
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Speaker 3: and how easy or how hard that ought to be.
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Speaker 3: But I don't think anybody can really argue that immigrants
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Speaker 3: have really helped to build our country and still do.
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Speaker 3: And every judge, every Article three judge, has to be
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Speaker 3: a citizen of the United States. That's a requirement, and
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Speaker 3: nobody's questioning that. But if people go through the process
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Speaker 3: to become citizens, and anybody who's been through the naturalization
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Speaker 3: process knows that it's it's actually pretty pretty rigorous, and
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Speaker 3: you have to know more about the Constitution than people
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Speaker 3: who are born here. Otherwise you don't get naturalized as
6:33
Speaker 3: a citizen. And so just to say that people with
6:36
Speaker 3: that background should not be judged, it's just something that
6:39
Speaker 3: needed to be called out. I think that was the
6:41
Speaker 3: sense of our of our group.
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Speaker 2: So I'm wondering if it's part and parcel of what
6:46
Speaker 2: we've seen from the Trump administration, you know, with the
6:50
Speaker 2: attack on birthright citizenship and also the instruction to Justice
6:55
Speaker 2: Department lawyers to maximally pursue the naturalization proceedings. I mean,
7:02
Speaker 2: before this administration, stripping citizenship has been rare. On average,
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Speaker 2: there were only eleven d naturalization cases each year from
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Speaker 2: nineteen ninety to twenty seventeen.
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Speaker 3: I think you could certainly say, you know, I'm not
7:20
Speaker 3: in a position to speculate what they're thinking, but it's
7:23
Speaker 3: in line with that in the sense that, you know,
7:26
Speaker 3: I think for a long time, being a naturalized citizen
7:29
Speaker 3: was a pretty respected status, and I mean I think
7:32
Speaker 3: it still is among most people. And so the idea
7:35
Speaker 3: that you would in any way kind of try to
7:37
Speaker 3: diminish that is something new and different. And I think
7:41
Speaker 3: including judges in that is definitely new and different. I mean,
7:45
Speaker 3: I've never seen that. And as I said, I mean
7:48
Speaker 3: there are judges on when you go back and actually
7:51
Speaker 3: do the research as to who's in that group. I mean,
7:54
Speaker 3: there are people who are really quite supportive of the
7:56
Speaker 3: president in his policies and the administration. I mean, they
7:59
Speaker 3: have been pretty vocal in that respect. But you know,
8:01
Speaker 3: that group includes naturalized it. So I think the idea
8:05
Speaker 3: that you're going to weaken that status or make it
8:07
Speaker 3: more intingent, that is certainly something that some people in
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Speaker 3: administration have been talking about and you know, I think
8:13
Speaker 3: you could certainly say that this is part and parcel
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Speaker 3: with that.
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Speaker 2: Please stay with me, Judge Fogel coming up next. The
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Speaker 2: top lawyer at the Department of Homeland Security is publicly
8:24
Speaker 2: calling out for federal judges in a list This is Bloomberg.
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Speaker 2: Last week, Justice is Elena Kaigan and Amy Cony Barrett
8:35
Speaker 2: testified before Congress about the increasing threats to the judiciary.
8:40
Speaker 2: Justice Kagan explained how politicians calling out judges by name
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Speaker 2: and trying to intimidate them crosses a line and it's dangerous.
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Speaker 4: These statements are really unhelpful. They're dangerous in terms of
8:56
Speaker 4: individual justices security, and they're not appropriate the way to
9:01
Speaker 4: treat a coordinate branch of government. I think the Chief
9:04
Speaker 4: Justice had a year end statement last year where he
9:08
Speaker 4: talked about this issue, and he talked about a criticism
9:12
Speaker 4: is fair game. I mean, go for it. You know,
9:15
Speaker 4: life in the big city is that you're subject to
9:18
Speaker 4: all kinds of criticism, But intimidation is a different thing entirely.
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Speaker 4: And when political figures of any stripe are trying to
9:27
Speaker 4: intimidate judges and justices to do things that they like
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Speaker 4: rather than the things that they don't. That's where we
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Speaker 4: really have crossed the line.
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Speaker 2: Judges are facing increasing threats, with the US Marshals Service
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Speaker 2: tracking five hundred and sixty four threats against federal judges
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Speaker 2: last year. But instead of toning down the rhetoric against judges, today,
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Speaker 2: the top lawyer in the Department of Homeland Security, James Percival,
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Speaker 2: called out four federal judges by name in posts on
10:03
Speaker 2: social media, which he described as a new series entitled
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Speaker 2: quote Worst of the Worst District Judge. Addition, apparently the
10:13
Speaker 2: judges made the list because they ruled against the Trump
10:16
Speaker 2: administrations immigration agenda. For example, two of the judges ruled
10:21
Speaker 2: to temporarily preserve deportation protections for certain immigrants from Burma
10:27
Speaker 2: and Somalia while litigation continued. Another judge was in charge
10:32
Speaker 2: of the Justice departments bungled deportation proceedings for Kilmar Orbrego Garcia.
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Speaker 2: I've been talking to retired federal judge Jeremy Fogel. Judge
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Speaker 2: Fogal your article three coalition has spoken out about the
10:47
Speaker 2: increasing threats to federal judges safety and last week, Justices
10:53
Speaker 2: Amy Cony Barrett and Elena Kagan were testifying before Congress
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Speaker 2: about the increasing threats to justices and judges as well.
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Speaker 2: Yet today we have the General Counsel of the Department
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Speaker 2: of Homeland Security putting out a list of four judges
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Speaker 2: he calls the worst of the worst. So doing exactly
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Speaker 2: what the justices said was dangerous.
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Speaker 3: That's exactly the kind of thing that we're trying to
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Speaker 3: be vigilant about. I don't think anybody's really said it
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Speaker 3: better than the Chief Justice. I mean, he's now spoken
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Speaker 3: about it three or four times, and it's very unusual
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Speaker 3: for him to make public statements like that. He's felt
11:34
Speaker 3: it necessary to speak out about threat and among the
11:37
Speaker 3: statements that he's made, he's talked about it's inappropriate to
11:41
Speaker 3: engage in these kinds of attacks, to call like that,
11:44
Speaker 3: to threaten judges with impeachment or removal, that it's somehow
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Speaker 3: appropriate to go after them because they've ruled against the
11:51
Speaker 3: administration in the ways that they have. The sitting judges
11:54
Speaker 3: are very limited in what they could say because of
11:56
Speaker 3: ethical and I think retired judges are in a unique
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Speaker 3: position say, look, we have sat in that chair. We
12:02
Speaker 3: understand what the job is, we understand what our responsibilities
12:05
Speaker 3: are in terms of following the law and doing the
12:08
Speaker 3: right thing is the best of our ability, and we
12:12
Speaker 3: have a system which allows for thorough review. People make
12:16
Speaker 3: decisions that you don't like. I mean, that's why we
12:18
Speaker 3: have appellate courts, that's why we have very robust a
12:22
Speaker 3: pellet review. And to make these kinds of personal characterizations
12:28
Speaker 3: and putting people on hit lists or enemies lists or
12:31
Speaker 3: impeachment lists, again, that's just not the way our system
12:34
Speaker 3: ever has been intended to work. So I don't think
12:37
Speaker 3: that's constructive. And I think that's really been one of
12:39
Speaker 3: our goals try to educate the public to the extent
12:42
Speaker 3: that we can that you know you don't like a
12:44
Speaker 3: judge's rulings, you can speak out about that, you can
12:48
Speaker 3: write op eds, you can make public speeches, you can
12:50
Speaker 3: talk to your neighbors, you can do all the things
12:52
Speaker 3: that the First Amendment entitles you to do. But you
12:54
Speaker 3: can't threaten people. And I think Justice Barrett and Justice
12:58
Speaker 3: Kegan we're very eloquent about that, and they both faced this.
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Speaker 3: Sispic's family has been threatened and Justice Kagan has they's threats,
13:06
Speaker 3: and I think the fact of that on the morale
13:10
Speaker 3: of judges, the ability of judges to do their jobs
13:13
Speaker 3: without undue pressure under stress. And it's a hard enough
13:17
Speaker 3: job as it is, you know, just trying to get
13:19
Speaker 3: the law right and trying to get the cases right
13:21
Speaker 3: and manage the workload that you have. And then when
13:24
Speaker 3: you when you get you know, people coming after you
13:26
Speaker 3: or coming after your family, that really really ratcheted up.
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Speaker 3: And this is an area I do a lot of
13:32
Speaker 3: work in and helping judges deal with stress and be resilient.
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Speaker 3: And it's just graduated up so much in the last
13:38
Speaker 3: few years. You know that a job that was already
13:40
Speaker 3: difficult has become much more difficult because of security issues
13:44
Speaker 3: and personal threats. And I think that's why the chief
13:47
Speaker 3: is spoken out, and I give them full credit for that.
13:50
Speaker 3: He hasn't been quiet about it, and I think that's
13:53
Speaker 3: very important.
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Speaker 2: Well, thanks so much for joining me today. I appreciate
13:57
Speaker 2: your time. That's Judge Jeremy Fogel, formerly of the Northern
14:01
Speaker 2: District of California. Back in October of twenty twenty one,
14:07
Speaker 2: John Gruden resigned in the middle of a four hundred
14:10
Speaker 2: million dollar ten year contract as coach of the Las
14:13
Speaker 2: Vegas Raiders after the leak of emails where Gruden used
14:18
Speaker 2: racist and homophobic language. He apologized, in particular for the
14:23
Speaker 2: racist term he used to describe NFL Union chief D
14:27
Speaker 2: Maurice Smith.
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Speaker 5: I can say as I'm not a racist, I don't.
14:31
Speaker 5: I can't tell you how sick I am. I apologize
14:34
Speaker 5: again to D. Smith, but I feel good about who
14:39
Speaker 5: I am and what I've done my entire life, and
14:42
Speaker 5: I apologize for the insensitive remarks. I had no you know,
14:48
Speaker 5: I had no racial intentions with those remarks at all.
14:53
Speaker 2: The next month, Gruden filed a one hundred and fifty
14:56
Speaker 2: million dollar lawsuit against the NFL and Commissioner Roger Goodell,
15:01
Speaker 2: claiming that in a malicious and orchestrated campaign, the league
15:05
Speaker 2: leaked the damaging emails to ruin his reputation and force
15:09
Speaker 2: his resignation. Goodell and the League denied the allegations and
15:13
Speaker 2: have been vigorously fighting the case since, including failed efforts
15:18
Speaker 2: to force this suit into private arbitration and to stall discovery,
15:23
Speaker 2: both of which went all the way up to the
15:25
Speaker 2: Nevada Supreme Court before they were denied. Now the NFL
15:29
Speaker 2: is trying to get the lawsuit dismissed under Nevada's anti
15:33
Speaker 2: slap statute joining me his first Amendment expert Jeff Lewis.
15:37
Speaker 2: Jeff start by telling us a little about Gruden's lawsuit.
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Speaker 1: Well, coach Cruden used to be the coach of the
15:43
Speaker 1: Las Vegas Raiders, and he was forced to resign after
15:46
Speaker 1: some unflattering emails were released that he had sent when
15:50
Speaker 1: he was actually a broadcaster for ESPN. And the gist
15:54
Speaker 1: of his lawsuit is that he says these emails were
15:57
Speaker 1: obtained by the NFL, released for the purpose of torpedoing
16:02
Speaker 1: John Gruden's career, and so he sued the NFL for
16:06
Speaker 1: lost income and lost opportunities.
16:08
Speaker 2: So the NFL has spent years trying to have this
16:12
Speaker 2: lawsuit dismissed or forced into private arbitration. Last summer, the
16:17
Speaker 2: Nevada Supreme Court upheld a lower court ruling that allowed
16:20
Speaker 2: the case to move forward in court rather than being
16:23
Speaker 2: handled through private arbitration. How important is that that it's
16:28
Speaker 2: not going to be an arbitration, You.
16:30
Speaker 1: Know, that's a great point. You know, in football, when
16:32
Speaker 1: you want to keep offense off the field, you run
16:34
Speaker 1: out the clock. And that's what the NFL has been
16:36
Speaker 1: doing in terms of trying to force this case into
16:38
Speaker 1: an arbitration where the commissioner of the NFL runs the arbitration.
16:43
Speaker 1: So the Nevada Supreme Court said, no, that's not going
16:45
Speaker 1: to happen. So now this case is going to be
16:48
Speaker 1: heard in a court with discovery open to the public,
16:51
Speaker 1: not confidential. Trial set for early twenty twenty seven. And
16:55
Speaker 1: the fact that discovery can be conducted and that this
16:58
Speaker 1: trial is going to be in open and not any
17:00
Speaker 1: secret arbitration suggests to me that maybe this case, when
17:04
Speaker 1: it gets close to trial, will settle because both of
17:07
Speaker 1: these parties have big incentives not to have this aired
17:10
Speaker 1: out in public.
17:11
Speaker 2: So the NFL is trying to get the lawsuit dismissed
17:17
Speaker 2: under Nevada's anti slap statute. Tell us about the anti
17:21
Speaker 2: slap statutes.
17:22
Speaker 1: Sure, before I talk to you about antislap, let me
17:24
Speaker 1: tell you what a slap is. A slap is a
17:26
Speaker 1: strategic lawsuit against public participation where a big company or
17:31
Speaker 1: large corporation is trying to stifle the First Amendment rights
17:35
Speaker 1: of a little guy that David versus Goliath battle. And
17:38
Speaker 1: what an antislap law says is rather than waiting five
17:41
Speaker 1: years and spending half a million dollars on attorney's fees.
17:44
Speaker 1: A defendant in a slapsuit, a case involving First Amendment
17:48
Speaker 1: rights can very quickly cut the line, have their case
17:51
Speaker 1: looked at in the first six months, and if it's
17:53
Speaker 1: a frivolous case, have it thrown out, and have all
17:55
Speaker 1: their attorney's fees paid for. That's what an anti slap
17:59
Speaker 1: usually does. What makes this case super unusual is the NFL,
18:03
Speaker 1: first of all, is not the David in the David
18:05
Speaker 1: and Goliath scenario. The NFL is using the antislap law
18:09
Speaker 1: halfway through the case, years after it was filed, to
18:11
Speaker 1: try to get the case kicked out, and preliminarily, the
18:15
Speaker 1: trial court has said, no, this is not a good
18:17
Speaker 1: use of the antislap law. It's too late and your
18:20
Speaker 1: arguments aren't good, and so we're going to let discovery
18:23
Speaker 1: and the trial date continue. And the NFL's signaled that's
18:26
Speaker 1: going to appeal that ruling and wants to stay all
18:29
Speaker 1: discovery pending that appeal, and so far the trial court
18:32
Speaker 1: has said no, we're going to continue with discovery.
18:34
Speaker 2: So Nevada's antislap law protects quote, a person who engages
18:39
Speaker 2: in a good faith communication in furtherance of the right
18:43
Speaker 2: to petition or the right to free speech in direct
18:46
Speaker 2: connection with an issue of public concern. How is the
18:50
Speaker 2: NFL arguing that this case fits within that definition.
18:56
Speaker 1: Through some creative lawyering. Look, the First Amendment does protect
18:59
Speaker 1: the right folks to communicate with the press about issues
19:02
Speaker 1: of public importance. You and I are talking about an
19:04
Speaker 1: issue of public importance right now, and so the NFL's
19:07
Speaker 1: creative lawyering is, Look, when they supplied emails to a
19:12
Speaker 1: reporter or to a newspaper or the Wall Street Journal,
19:15
Speaker 1: they were communicating with the press and exercising First Amendment
19:19
Speaker 1: rights for an important news story. The contrary argument that
19:23
Speaker 1: Gruden has advocated is, Look, this wasn't First Amendment activity.
19:27
Speaker 1: You leaked it. It was quiet, wasn't in furtherance of
19:30
Speaker 1: some First Amendment right. You were just trying to do
19:32
Speaker 1: a hit piece on John Gordon.
19:34
Speaker 2: Do they know who leaked the emails?
19:37
Speaker 1: No. That's why discovery so important this case, and that's
19:40
Speaker 1: why NFL is trying to fight discovery and use appeals
19:44
Speaker 1: and delay tactics. And that's why John Gruden is pushing
19:47
Speaker 1: for discovery. It's the pressure point by which this case
19:50
Speaker 1: will eventually settle.
19:52
Speaker 2: Because if they don't know who leaked it, how can
19:54
Speaker 2: they claim that the person engaged in good faith communication.
20:00
Speaker 1: That's exactly right, and the good faith here, it's the
20:02
Speaker 1: NFL's burden to show their good faith, and they can't
20:05
Speaker 1: just generically say, well, someone leaked it and they must
20:08
Speaker 1: have had good faith. They have to have an actual, living,
20:10
Speaker 1: breathing person to sign a declaration or testify in court
20:13
Speaker 1: saying here's why I leaked it, and I don't know June,
20:16
Speaker 1: but I'm going to guess that the person who leaked
20:19
Speaker 1: this from the NFL either didn't say anything to the
20:23
Speaker 1: press when they were leaking it, or didn't say anything
20:26
Speaker 1: flattering to John Gruden when they were leaking it to
20:29
Speaker 1: the press. Either scenario, it's going to be a hard,
20:32
Speaker 1: hard burden for the NFL to show its good faith.
20:36
Speaker 2: So they want to get rid of the suit before
20:38
Speaker 2: discovery begins. When discovery begins, they'll be able to find
20:42
Speaker 2: out who leaked the emails right absolutely.
20:45
Speaker 5: Now.
20:46
Speaker 1: You know, they can't go after the reporters because of
20:48
Speaker 1: shield laws, so John Gruden can't subpoena reporters, but they
20:52
Speaker 1: can serve discovery on the NFL asking for emails and
20:55
Speaker 1: text messages of its key personnel to find out who
20:58
Speaker 1: add access to these emails during its investigation of the
21:02
Speaker 1: Washington football team, and after you know, you narrow it
21:06
Speaker 1: down to that group who had contact with the Wall
21:08
Speaker 1: Street Journal, we'll find out.
21:10
Speaker 2: The NFL was also at the Nevada Supreme Court about
21:14
Speaker 2: discovery in the lawsuit. Is it unusual to be going
21:17
Speaker 2: to the supreme court of a state so often when
21:20
Speaker 2: we haven't even gotten to the merits yet.
21:23
Speaker 1: Yeah, there's been a lot of interlocatory appeals in this case.
21:26
Speaker 1: It's very unusual. But when you have the resources of
21:29
Speaker 1: the NFL and you want to run out the clock,
21:31
Speaker 1: it's not surprising they They've advanced every appeal they can.
21:35
Speaker 2: Gruden is going to seek testimony from league executives, prominent
21:39
Speaker 2: team owners, and Goodell himself, Commissioner Goodell himself. Will they
21:43
Speaker 2: likely get access to all those people in discovery or
21:46
Speaker 2: will it be a fight?
21:48
Speaker 1: Well, they likely get access to all the emails and
21:51
Speaker 1: text messages from those key people. Whether they get live
21:55
Speaker 1: testimony is another question. And I don't think they can
21:58
Speaker 1: start at the commissioner level. We'll have to start at
22:00
Speaker 1: lower level. Employees of the NFL and see what John
22:03
Speaker 1: Gruden can get from those witnesses. And if they don't
22:06
Speaker 1: get anywhere, then yeah, they can ask the court to
22:08
Speaker 1: order the commissioner himself to show up for a deposition.
22:11
Speaker 2: So is this anti slap motion a hail mary passed
22:14
Speaker 2: by the NFL.
22:15
Speaker 1: It is a hail lary in the sense that it
22:17
Speaker 1: is so late. Most courts like these antislap motions heard
22:21
Speaker 1: within the first sixty to ninety one hundred and twenty days,
22:24
Speaker 1: not two years in, and so it's procedurally improper. Substantively,
22:29
Speaker 1: I have to say it has merit in the sense
22:31
Speaker 1: that the NFL has a colorable argument that this is
22:35
Speaker 1: a First Amendment case, that speaking to the press is
22:37
Speaker 1: an exercise of First Amendment activity. But I do think
22:40
Speaker 1: John Gruden has enough of a case that he can
22:43
Speaker 1: squeak by the anti slap analysis. Even if the anti
22:46
Speaker 1: slap motion were timely, this case is going to escape
22:49
Speaker 1: an anti slap motion to dismiss.
22:51
Speaker 2: Why is the NFL trying so hard to delay delay.
22:54
Speaker 1: Delay, Because they don't want their commissioner Coorse to sit
22:57
Speaker 1: for a deposition, and because on Gruden, in addition to
23:01
Speaker 1: unearthing his emails, will seek to unearth other embarrassing emails
23:04
Speaker 1: and communications by either other coaches or other high level
23:08
Speaker 1: executives of the NFL, and all of that dirty laundry
23:11
Speaker 1: will come out in a public proceeding without the benefit
23:14
Speaker 1: of the confidentiality of an arbitration. And so that's a
23:17
Speaker 1: pressure point to use against the NFL to try to
23:19
Speaker 1: get them to write a big check.
23:21
Speaker 2: Yeah, I was going to say, they're delaying the inevitable
23:23
Speaker 2: unless there's a settlement, right.
23:25
Speaker 1: You know, most cases don't go to trial. Most cases settle.
23:28
Speaker 1: The question is how much pressure can John Gruden assert
23:32
Speaker 1: against the NFL to force a higher and higher settlement
23:36
Speaker 1: check because this is not a case that either party
23:39
Speaker 1: wants to try in public.
23:40
Speaker 2: What does this case tell you about the need for
23:42
Speaker 2: anti slap laws?
23:44
Speaker 1: This case kind of highlights why every state needs an
23:47
Speaker 1: anti slap law. You know, not all states have an
23:50
Speaker 1: antislap law, and the anti slap law is what gives
23:52
Speaker 1: the first Amendment. It's deep. If you're in a state
23:55
Speaker 1: that doesn't have an anti slap law and you get
23:57
Speaker 1: sued for something, you have to wait five years to
24:00
Speaker 1: gata case, spend maybe half a million dollars in attorney's fees,
24:03
Speaker 1: and if you're in a state with an antislap law,
24:05
Speaker 1: you can cut the line, have a judge look at
24:07
Speaker 1: your case early, have a judge determine whether or not
24:10
Speaker 1: this is a frivolous case, and dismiss it or not,
24:12
Speaker 1: and save to you that five years of litigation. And
24:15
Speaker 1: Nevada and California have antislap laws, but only about half
24:19
Speaker 1: the states do. And there has been some talk for
24:21
Speaker 1: some time about passing a federal anti slap law so
24:25
Speaker 1: that it's more uniform across the states, so that people
24:28
Speaker 1: who legitimately need the protection of the First Amendment can
24:32
Speaker 1: assert it in the first few months of a case,
24:34
Speaker 1: not like the NFL did here two.
24:35
Speaker 2: Years in you I'm curious the NFL has, we say,
24:39
Speaker 2: limitless money to spend on lawyers. How is Gruden matching
24:44
Speaker 2: up with it?
24:45
Speaker 1: Most planuffs in his position will either pay their lawyers
24:48
Speaker 1: on a contingency basis or a hybrid basis. And most
24:51
Speaker 1: plaintiffs lawyers who take on a case against a high
24:54
Speaker 1: profile defendmant like this, know that they're going to have
24:57
Speaker 1: years of litigation and lots of procedural obstacles placed in
25:01
Speaker 1: their way, lots of appeals. So I imagine whichever lawyer's
25:04
Speaker 1: Gruden hired, those lawyers knew they were going to be
25:07
Speaker 1: in for a very long fight. There's lots of technical
25:09
Speaker 1: defenses that could be raised here, and even if John
25:12
Speaker 1: Gruden were to go to trial and win, there will
25:14
Speaker 1: be appeals after the fact. One of the interesting things
25:17
Speaker 1: about this case is, you know, in most cases like
25:19
Speaker 1: this involving emails, it's a claim of either defamation or
25:23
Speaker 1: false light, meaning the emails suggests something false or that
25:27
Speaker 1: puts the person who wrote the emails in a negative light. Here,
25:31
Speaker 1: these emails are in John Gruden's own words. He wrote them,
25:35
Speaker 1: and he's in the unique position of having to say, yeah,
25:39
Speaker 1: I wrote some awful things. I wrote those things, I
25:42
Speaker 1: said those things. But the NFL should not have released
25:44
Speaker 1: them in a targeted fashion. And the NFL has the
25:47
Speaker 1: interesting culture war argument. The NFL has the argument suggesting
25:51
Speaker 1: they're trying to clean up their culture, combat homophobia and misogyny,
25:56
Speaker 1: and releasing these emails was just part of its campaign
25:59
Speaker 1: to clean up its image. Whether or not Discovery bears
26:02
Speaker 1: either of those arguments out is something to be seen and.
26:05
Speaker 2: We'll see if this really does go to trial next May.
26:09
Speaker 2: Thanks so much, Jeff. That's First Amendment expert Jeff Lewis,
26:13
Speaker 2: And that's it for this edition of The Bloomberg Law Show.
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