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Weekend Law: TikTok Ban Upheld & Trump's Day One Orders · Bloomberg Law

• 0:02
  Speaker 1: This is Bloomberg Law, with June Grosseol from Bloomberg Radio.
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  Speaker 2: I have a warm spot in my heart for TikTok
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  Speaker 2: because I won youth by thirty four points, and there
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  Speaker 2: are those that say that TikTok has something to do
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  Speaker 2: with it.
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  Speaker 3: Donald Trump may now have a warm spot in his
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  Speaker 3: heart for TikTok, but the ban on the wildly popular
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  Speaker 3: app will go into effect on Sunday, and keeping his
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  Speaker 3: promise to negotiate a solution will take more than just
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  Speaker 3: good intentions. On Friday, the Supreme Court closed the door
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  Speaker 3: to a legal solution, unanimously upholding the law banning TikTok.
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  Speaker 3: The Court found that the risk to national security posed
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  Speaker 3: by its ties to China outweighed concerns about limiting speech
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  Speaker 3: by the app or its one hundred and seventy million
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  Speaker 3: users in the US. The decision was widely expected after
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  Speaker 3: the oral arguments, in which hostices like Brett Kavanaugh repeatedly
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  Speaker 3: signed the government's concerns about its Chinese control and data collection.
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  Speaker 4: I think Congress and the President were concerned that China
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  Speaker 4: was accessing information about millions of Americans. Tens of millions
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  Speaker 4: of Americans, including teenagers, people in their twenties, that they
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  Speaker 4: would use that information over time to develop spies, to
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  Speaker 4: turn people to blackmail people, people who a generation from
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  Speaker 4: now will be working in the FBI or the CIA.
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  Speaker 3: Joining me is Eric Goldman, a professor at Santa Clara
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  Speaker 3: University Law School and co director of the High Tech
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  Speaker 3: Law Institute. Eric tell us about the Court's reasoning in
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  Speaker 3: deciding that TikTok ban was okay.
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  Speaker 5: The Court upheld the ban on TikTok using a medium
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  Speaker 5: level of constitutional scrutiny, and in so doing that they
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  Speaker 5: gave substantial credit to Congress's findings that TikTok posed a
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  Speaker 5: threat to national security because of the Chinese government's capacity
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  Speaker 5: to capture sensitive US resident data.
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  Speaker 3: What did they say about the free speech rights of
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  Speaker 3: TikTok and the content creators.
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  Speaker 5: They didn't really talk about the free speech right so much.
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  Speaker 5: And it's really a gaping pole in the opinion that
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  Speaker 5: the Court doesn't really seem to care that one hundred
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  Speaker 5: and seventy million Americans are going to have to change
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  Speaker 5: how they talk to each other. That just didn't really
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  Speaker 5: compute in the court's calculus.
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  Speaker 3: When a court faces the executive branch and the legislative
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  Speaker 3: branch saying they're a national security concerns, Do they sort
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  Speaker 3: of just close up shop?
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  Speaker 5: Not always. National security concerns aren't a free past around
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  Speaker 5: the First Amendment. But in this case, the Court was
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  Speaker 5: extraordinarily deferential to those findings. And that's impart because this
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  Speaker 5: case did not go through normal to review by its
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  Speaker 5: own terms. It skipped one of the normal steps where
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  Speaker 5: the facts are developed, and so many of the facts
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  Speaker 5: that were posed by the bill that the Court accepted
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  Speaker 5: might have been more aggressively challenged if there have been
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  Speaker 5: a chance to contest those facts in the lower court.
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  Speaker 3: There was some discussion during the oral arguments about the
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  Speaker 3: secretive nature of some of the evidence. Did that come
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  Speaker 3: into play at all?
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  Speaker 5: It did not. The Court disregarded all the secret evidence,
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  Speaker 5: as did the lower court that depined upon this case,
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  Speaker 5: and they relied solely upon the justifications that were offered
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  Speaker 5: in public.
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  Speaker 3: During the oral arguments, it seemed like Justice Gorsich might
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  Speaker 3: be the one vote to strike down the TikTok ban,
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  Speaker 3: but he voted with all the other justices to uphold
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  Speaker 3: the ban. What did he say in his concurring opinion.
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  Speaker 5: Justice Goursach raised a number of concerns about both the
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  Speaker 5: procedure and the substance of the Court's ruling, And yet
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  Speaker 5: he also seems to be taking in incredibly hard line
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  Speaker 5: in his opinion. He might have been suggesting that he
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  Speaker 5: would have upheld the law even if the most rigorous
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  Speaker 5: level of constitutional scrutiny would have applied. And so I
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  Speaker 5: think in the end, there was this senophobia, this fear
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  Speaker 5: of China that pervades the bill and unfortunately pervaded the
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  Speaker 5: Supreme Courts of Banton as well. And Justice Gorsuch definitely
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  Speaker 5: bought into that sinophobia.
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  Speaker 3: What was the standard of scrutiny that the court used
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  Speaker 3: in analyzing the ban?
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  Speaker 5: What the Court did is that they said that this
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  Speaker 5: law was content neutral, not content based, and they said
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  Speaker 5: that all it does is just dictate who can own TikTok,
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  Speaker 5: and that's a content neutral way of controlling speech. To me,
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  Speaker 5: that's just mockable. That's ridiculous to think that determining the
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  Speaker 5: owner of a speech venue has no impact on the
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  Speaker 5: speech that will be available on the venue. We see
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  Speaker 5: that all the time when media companies change ownership, new
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  Speaker 5: owners come in the policy seeds of that publication change
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  Speaker 5: and that's going to happen here as well. So the
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  Speaker 5: Court really cut an a elect corner by saying that it
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  Speaker 5: wasn't based on the content that was available on TikTok,
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  Speaker 5: when there's really no way for that not to be
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  Speaker 5: affected by the ruling.
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  Speaker 3: During Wednesday's oral arguments, it seemed like most of the
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  Speaker 3: justices were open to having age checks for online porn.
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  Speaker 3: Are they sort of backtracking from what has been strong
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  Speaker 3: concerns about free speech?
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  Speaker 5: I think it's a little premature to drawing conclusions about
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  Speaker 5: where the age verification analysis will go. But in July,
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  Speaker 5: the Supreme Court issued a very strong pro free speech
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  Speaker 5: ruling that vindicated the First Amendment rights of social media platforms,
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  Speaker 5: and this opinion is not that. And it makes me
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  Speaker 5: wonder if those two opinions are fully consistent with each other,
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  Speaker 5: or maybe it makes me wonder that really what they
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  Speaker 5: said in July they don't really mean, and that's not
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  Speaker 5: going to predict their future rulings.
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  Speaker 3: The Washington Post has reported that Trump is considering an
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  Speaker 3: executive order on TikTok. I guess to add to the
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  Speaker 3: one hundred he's going to issue on the first day,
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  Speaker 3: but is an executive order appropriate in the case of TikTok.
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  Speaker 5: President Trump will have a range of options to try
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  Speaker 5: to help out TikTok if he chooses, he cannot unilaterally
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  Speaker 5: override what Congress said, and that now it's been upheld
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  Speaker 5: by the court, so anything he does to try to
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  Speaker 5: help out TikTok might be inconsistent with Congress's direction and
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  Speaker 5: might also be an excessive at authority. Having said that,
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  Speaker 5: I don't know who's going to care about that and
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  Speaker 5: force him to comply with the law that Congress passed,
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  Speaker 5: so he might get away with it.
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  Speaker 3: Does it seem as if the temperature is sort of
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  Speaker 3: changing on TikTok, that now you have more people who
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  Speaker 3: don't approve of the ban, and even some lawmakers who
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  Speaker 3: are now looking to change things up.
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  Speaker 5: The ban was actually always unpopular. There were polls throughout
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  Speaker 5: the time period suggesting that the majority of Americans do
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  Speaker 5: not want to ban TikTok, and for reasons that are
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  Speaker 5: a little less clear to me, that message is finally
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  Speaker 5: sinking in with some of the politicians who were responsible
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  Speaker 5: for the ban, and they're starting to question it. They
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  Speaker 5: got it right, and in particular, President Biden has indicated
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  Speaker 5: that he might not take any action during his remaining
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  Speaker 5: hours as president and kick the matter over to President Trump. Now,
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  Speaker 5: Biden doesn't have to help out TikTok at all. He
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  Speaker 5: could start that enforcement on the moment the law goes
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  Speaker 5: into effect. And yet he seems to be questioning whether
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  Speaker 5: he should have even been in support of this bill.
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  Speaker 5: So I don't really understand why the temperature has changed,
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  Speaker 5: but I do agree with you that people are questioning
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  Speaker 5: the legitimate to see this bill. At the same time
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  Speaker 5: the Supreme Court gave it a clean bill.
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  Speaker 3: Health Biden himself was on TikTok, and Newsweek reported that
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  Speaker 3: nine Senators and twelve House members who voted for the
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  Speaker 3: TikTok ban also had accounts, so apparently they didn't have
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  Speaker 3: concerns about national security or data collection well.
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  Speaker 5: And incoming President Trump also said that TikTok was an
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  Speaker 5: important part of his campaign strategy, and so it really
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  Speaker 5: reinforces the speech risks of banning any app that allows
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  Speaker 5: people to talk to each other. Those apps enable conversations
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  Speaker 5: that may not exist anywhere else, and taking those apps
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  Speaker 5: out of the marketplace then distort speech in a way
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  Speaker 5: that we can't necessarily predict. But That's why the First
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  Speaker 5: Amendment prevents us from having to worry about that. We're
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  Speaker 5: not supposed to be worried about losing our ability to
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  Speaker 5: talk to each other because the first man protects it.
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  Speaker 5: And that's why it's so painful to me that the
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  Speaker 5: Supreme didn't vindicate those First Amendment rights.
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  Speaker 3: So Eric, during the oral arguments, the attorney for TikTok
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  Speaker 3: said that it was going to go dark on Sunday.
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  Speaker 3: What happens if it goes dark?
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  Speaker 5: I don't know what going dark means. We know that
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  Speaker 5: the law requires the app stores to stop making the
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  Speaker 5: tiktop app available for download. That is a form of
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  Speaker 5: going dark, But that's I think not what most people
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  Speaker 5: would be referring to. And it's unclear what other consequences
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  Speaker 5: will happen to people who've oready installed the TikTok app
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  Speaker 5: after the band goes into effect. Now, if President Biden
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  Speaker 5: kicks the can over to President Trump, who then says
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  Speaker 5: we're going to withhold enforcement so that we can figure
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  Speaker 5: something out, it's possible that no one's actually going to
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  Speaker 5: change their behavior, and so there won't be any going
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  Speaker 5: dark because of these representations from the enforcement side.
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  Speaker 3: But would the app store want to take the chance
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  Speaker 3: knowing that they could be subjected to these massive fines.
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  Speaker 5: The app stors may have defenses that have been untested,
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  Speaker 5: but for the most part, the app stores are almost
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  Speaker 5: certainly going to cater to the instructions of Congress. They
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  Speaker 5: have very little incentive to stand up on behalf of
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  Speaker 5: the individual app. They didn't show up in the litigation
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  Speaker 5: to express their own concerns about their free speech rights,
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  Speaker 5: and they're used to being ordered around by other governments
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  Speaker 5: outside the United States about which apps they can carry,
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  Speaker 5: and they don't really care as long as they can
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  Speaker 5: continue to function as app stores. So the appsturs have
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  Speaker 5: really shown zero spine or backbone when it comes to
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  Speaker 5: standing up on behalf of their apps or their users.
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  Speaker 5: They'll just do whatever the government tells them.
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  Speaker 3: There are a lot of obstacles in the way of
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  Speaker 3: a sale, including that Byedan's has said it doesn't want
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  Speaker 3: to sell TikTok under the law. Does it have to
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  Speaker 3: be a sale or can there be some other kind
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  Speaker 3: of negotiated settlement.
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  Speaker 5: It has to be a sale. There's nothing that President
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  Speaker 5: Trump could do to brok or some intermediate deal. And
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  Speaker 5: I don't think he would want to. If President Trump
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  Speaker 5: gets evolved and if he's able to negotiate, he's almost
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  Speaker 5: certainly going to steer the ownership of TikTok into the
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  Speaker 5: hands of one of his oligark buddies, And it's a
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  Speaker 5: form of basically looting the situation. That'll be a wealth
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  Speaker 5: transfer from TikTok's current owners into the hands of one
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  Speaker 5: of Trump's friends who is going to get a cheaper
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  Speaker 5: price due to the distress sale.
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  Speaker 3: And what's ironic is that the most popular apps so
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  Speaker 3: far for TikTok users looking for an alternative are also
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  Speaker 3: Chinese owned.
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  Speaker 5: Yeah, so I call it a diaspora that people are
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  Speaker 5: going to flee TikTok and spread through the Internet and
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  Speaker 5: other venues. But those who are going to other Chinese
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  Speaker 5: owned or affiliated apps aren't really solving their problem because
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  Speaker 5: the law can also apply to those other apps. And
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  Speaker 5: in fact, we have a senator, Senator Warner who said
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  Speaker 5: that he was going to make sure that those other
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  Speaker 5: apps were targeted. In other words, it might just be
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  Speaker 5: this cascade of rolling censorship that they take out TikTok,
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  Speaker 5: and then they're going to take out the next step,
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  Speaker 5: and the next step after that, and there's no natural boundaries.
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  Speaker 5: The Supreme Court has blessed the practice of just kicking
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  Speaker 5: apps out of the United States. So all those people
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  Speaker 5: who think they're being clever are not really solving their problem.
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  Speaker 5: But it's a sign of how people are voting with
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  Speaker 5: their Internet connections to say this is a really stupid solution.
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  Speaker 3: Well, TikTok Ceo posted a video thanking Trump for his support,
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  Speaker 3: So we will see what happens, and thank you Eric
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  Speaker 3: as always, that's Professor Eric Goleman of the Santa Clara
• 12:55
  Speaker 3: University Law School. I'm June Grosso. When you're listening to Bloomberg.
• 13:00
  Speaker 4: Going to be a dictator? Are you?
• 13:01
  Speaker 6: I said no, no, No. Other than day one, we're
• 13:04
  Speaker 6: closing the border and we're drilling, drilling, drilling. After that,
• 13:07
  Speaker 6: I'm not a day night.
• 13:08
  Speaker 3: Donald Trump is setting the stage for a frenetic first
• 13:12
  Speaker 3: day in office that may appear somewhat autocratic. He's preparing
• 13:16
  Speaker 3: to issue more than one hundred executive orders on day one.
• 13:21
  Speaker 3: They range from a crackdown on the southern border and
• 13:24
  Speaker 3: ending birthright citizenship to implementing sweeping tariffs and restricting the
• 13:30
  Speaker 3: rights of transgender Americans with a stroke.
• 13:33
  Speaker 6: Of my pen on day one, We're going to stop
• 13:35
  Speaker 6: the transgender lunacy, and I will sign executive orders to
• 13:45
  Speaker 6: end child sexual mutilation, get transgender out of the military
• 13:50
  Speaker 6: and out of our elementary schools and middle schools.
• 13:54
  Speaker 7: In high school.
• 13:56
  Speaker 3: Some of the executive orders will be significant, others will
• 14:00
  Speaker 3: be merely symbolic, and many will be challenged in the courts.
• 14:05
  Speaker 3: Joining me is constitutional law expert David Super, a professor
• 14:08
  Speaker 3: at Georgetown Law. David explain what an executive order is
• 14:13
  Speaker 3: and the power it carries.
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  Speaker 7: An executive order is simply a formal directive from the President,
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  Speaker 7: as head of the executive Branch, to any or all
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  Speaker 7: of his subordinates. It can be something that is called
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  Speaker 7: for by an Act of Congress. It can be issued
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  Speaker 7: under the president's constitutional authorities as commander in chief and
• 14:39
  Speaker 7: as head of the executive Department of government.
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  Speaker 3: Are there areas or things that the president can't do
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  Speaker 3: by executive order?
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  Speaker 8: Yeah.
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  Speaker 7: The President can't do anything that he doesn't have the
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  Speaker 7: authority to do, either from the Constitution or Congress. So
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  Speaker 7: he can't amend or repeal laws. He can't abridge People's
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  Speaker 7: First Amendment or do process freedoms. He can't exercise powers
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  Speaker 7: that are not his.
• 15:09
  Speaker 3: Do most executive orders require agencies to perform actions for the.
• 15:15
  Speaker 7: Most part, yes, because most laws delegate authority to agencies.
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  Speaker 7: So an executive order is the president publicly telling one
• 15:25
  Speaker 7: or more agencies how it wants them to use their
• 15:30
  Speaker 7: delegated powers. Very few matters, not none, but very few
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  Speaker 7: are delegated directly to the president.
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  Speaker 3: So then when an agency is ordered by executive order
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  Speaker 3: to do something, they have to go through the Administrative
• 15:46
  Speaker 3: Procedure Act and the rules process. So it can't be
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  Speaker 3: done immediately.
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  Speaker 7: No, and the agency can't do more than the law
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  Speaker 7: allows it to do. So the president can direct the
• 15:59
  Speaker 7: agency to do six things, but if the agency only
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  Speaker 7: has legal authority to do four of them, then that's
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  Speaker 7: all that's ever going to happen.
• 16:08
  Speaker 3: So Donald Trump says that he is going to issue
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  Speaker 3: one hundred executive orders on day one, and to put
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  Speaker 3: that into context, as of Monday, President Biden has issued
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  Speaker 3: one hundred and fifty five executive orders over four years.
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  Speaker 3: Do you think Trump wants to create shock and awe
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  Speaker 3: with this flood of orders?
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  Speaker 7: Oh, I think that's the idea. There have been a
• 16:31
  Speaker 7: number of statements from the President and from members of
• 16:36
  Speaker 7: his team suggesting that they intend to have a shock
• 16:39
  Speaker 7: and law entrance.
• 16:41
  Speaker 3: Immigration enforcement is and always has been Trump's number one priority.
• 16:48
  Speaker 3: He has said that on day one he's going to
• 16:51
  Speaker 3: close the US southern border, reinstate his travel bands, and
• 16:56
  Speaker 3: suspend refugee admissions into the country. Can he do those
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  Speaker 3: things by executive order?
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  Speaker 7: He can do things that sound like that, And if
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  Speaker 7: the goal of this is publicity, then perhaps he can
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  Speaker 7: get the publicity he is seeking. But there's very extensive
• 17:17
  Speaker 7: laws about the ability to limit travel, about refugees ability
• 17:24
  Speaker 7: to seek to come to this country, and a number
• 17:28
  Speaker 7: of the things in that area that have been discussed
• 17:31
  Speaker 7: publicly are probably illegal.
• 17:33
  Speaker 3: The Supreme Court did uphold his Muslim travel ban, but
• 17:38
  Speaker 3: circumstances have changed since then. So is there any guarantee
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  Speaker 3: the Supreme Court would uphold another travel ban.
• 17:45
  Speaker 7: There's no guarantee. That opinion was fairly deferential to the president,
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  Speaker 7: but it didn't suggest that the president had a complete
• 17:54
  Speaker 7: blank check. So if the President justifies a travel ban
• 18:00
  Speaker 7: on factually sound and legally permissible grounds, it'll be upheld.
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  Speaker 7: But remember this travel band that got to the Supreme
• 18:07
  Speaker 7: Court was not the first one or even the second
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  Speaker 7: one that he issued. His first few travel bans were
• 18:14
  Speaker 7: so blatantly unlawful that they lost in lower courts, and
• 18:20
  Speaker 7: his Justice Department sensibly conclude that there was no point
• 18:23
  Speaker 7: in appealing.
• 18:24
  Speaker 3: Are courts generally reluctant to stay or to overturn an
• 18:29
  Speaker 3: executive order? Do they give a lot of deference to
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  Speaker 3: the president?
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  Speaker 7: I don't know that that's generally true. Executive orders often
• 18:38
  Speaker 7: don't do anything that could be challenged in court. An
• 18:42
  Speaker 7: executive order might, for example, say that agencies should take
• 18:47
  Speaker 7: the interests of veterans into account in implementing various authorities
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  Speaker 7: under their control. That's not challengeable because it doesn't adversely
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  Speaker 7: affect anybody. If the president tries to take a thority
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  Speaker 7: that isn't his courts feel a need to intervene to
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  Speaker 7: preserve the separation of powers.
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  Speaker 3: Immigration advocacy groups, environmental groups, and some state ags are
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  Speaker 3: sort of gearing up to challenge some of these orders
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  Speaker 3: that he's promised, And another of his pledges is to
• 19:21
  Speaker 3: end birthright citizenship on day one. That's something that surely
• 19:26
  Speaker 3: will be challenged.
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  Speaker 7: Well, that's an example of an executive order that has
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  Speaker 7: no legal authority taking a power that isn't his. That's
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  Speaker 7: resolved by Section one of the fourteenth Amendment to the Constitution.
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  Speaker 7: So neither the President nor Congress can change that. We
• 19:42
  Speaker 7: could only change that if we amended the constitution.
• 19:45
  Speaker 3: Trump said, with a stroke of my pen on day one,
• 19:49
  Speaker 3: We're going to stop the transgender lunacy. He also said
• 19:53
  Speaker 3: that in his administration, the official policy of the US
• 19:57
  Speaker 3: government will be that there are only two genders, male
• 20:01
  Speaker 3: and female. What can he do to restrict transgender rights
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  Speaker 3: as he wants to.
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  Speaker 7: The most significant thing that he can do, and something
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  Speaker 7: he's already been doing, is feeding the flames of bigotry
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  Speaker 7: and hostility and hatred. I don't think there's any question
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  Speaker 7: that a significant number of transgender children will be driven
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  Speaker 7: into depression and some to suicide as a result of
• 20:25
  Speaker 7: this hateful rhetoric. That's clearly within his power. Controlling what
• 20:29
  Speaker 7: happens in schools they're run by state and local governments,
• 20:33
  Speaker 7: is not within his power.
• 20:35
  Speaker 3: What about preventing transgender people from being in the military.
• 20:39
  Speaker 7: The President has considerable authority as commander in chief to
• 20:45
  Speaker 7: take steps to make the military more effective. For the country.
• 20:51
  Speaker 7: Whether the courts would consider purging people who are serving
• 20:55
  Speaker 7: in the military honorably and have shown loyalty and proficiency
• 21:00
  Speaker 7: is another question.
• 21:01
  Speaker 3: He also said he's going to do something that's reminiscent
• 21:05
  Speaker 3: of what he attempted in his first term. He said
• 21:08
  Speaker 3: he's going to sign an executive order directing every federal
• 21:11
  Speaker 3: agency to immediately remove every single burdensome regulation. And he
• 21:17
  Speaker 3: said that for every regulation that a federal agency wants
• 21:22
  Speaker 3: to put into effect, it has to remove ten regulations.
• 21:27
  Speaker 3: That's up from his first term where he said they
• 21:30
  Speaker 3: have to eliminate two regulations for every one new regulation.
• 21:35
  Speaker 7: Well, it makes for good headlines, but it's pretty overtly illegal.
• 21:39
  Speaker 7: Each of the statutes that federal agencies implement have their
• 21:43
  Speaker 7: own legal criteria, and an agency should issue the regulations
• 21:49
  Speaker 7: the statue directs it to issue, and should not issue
• 21:52
  Speaker 7: regulations the statutes don't authorize. It is not a legal
• 21:57
  Speaker 7: or rational basis for deregulating that you needed to regulate
• 22:02
  Speaker 7: something else. He can't do that, and if an agency
• 22:06
  Speaker 7: tries to do repeals of the kind he's talking about,
• 22:09
  Speaker 7: those will surely be challenged and struck down in court.
• 22:12
  Speaker 3: So Out of the seventy seven major rules in his
• 22:15
  Speaker 3: first administration that were challenged, Trump won thirty one point
• 22:20
  Speaker 3: two percent of the time, according to an analysis by
• 22:23
  Speaker 3: NYU Law School's Institute for Policy Integrity. What difference, if any,
• 22:29
  Speaker 3: does it make that in his first term, the Chevron
• 22:33
  Speaker 3: Doctrine was in place, But in his second term there
• 22:36
  Speaker 3: is no Chevron doctrine, so that deference to agencies with
• 22:39
  Speaker 3: ambiguous rules is gone. Would that make any difference?
• 22:43
  Speaker 7: That'll mean he'll lose more. The Chevron doctrine was an
• 22:47
  Speaker 7: enormous help to President Trump in his first term. A
• 22:51
  Speaker 7: number of very questionable legal rulings were sustained on that basis.
• 22:55
  Speaker 7: He doesn't have that to hide behind anymore, and if
• 22:59
  Speaker 7: his new rules are as badly reasoned as the ones
• 23:03
  Speaker 7: in his first term, he'll be very lucky to get
• 23:06
  Speaker 7: even close to thirty one percent success.
• 23:08
  Speaker 3: He has talked about day one a lot in the
• 23:10
  Speaker 3: last few months, and he said, look, I can undo
• 23:14
  Speaker 3: almost everything Biden did through executive order, and on day
• 23:18
  Speaker 3: one much of that will be undone. A president can
• 23:22
  Speaker 3: revoke the executive orders of his predecessor.
• 23:26
  Speaker 7: The president generally can revoke the predecessor's executive orders, and
• 23:29
  Speaker 7: he can sign a new executive order with a list
• 23:32
  Speaker 7: of fire executive orders that are ascended. If he tries
• 23:37
  Speaker 7: that with too broad a brush, he'll probably end up
• 23:40
  Speaker 7: doing some things that are embarrassing, repealing recognitions of this
• 23:45
  Speaker 7: or that agency or state or individual for heroic or
• 23:52
  Speaker 7: public minded service. But he can repeal just about any
• 23:58
  Speaker 7: executive order he wants to, unless there is some statute
• 24:02
  Speaker 7: that requires that executive order to stay in place, which
• 24:05
  Speaker 7: there rarely is.
• 24:06
  Speaker 3: We assume he's going to rely on executive orders a
• 24:10
  Speaker 3: great deal. Was there another president who relied a lot
• 24:13
  Speaker 3: on executive orders?
• 24:15
  Speaker 7: No, there have been presidents who've issued very important executive orders.
• 24:20
  Speaker 7: Certainly President Reagan did, President Clinton did, and they did
• 24:24
  Speaker 7: change the government with those, but they were targeted at
• 24:28
  Speaker 7: particular things that were within their authority and particular things
• 24:33
  Speaker 7: that the government could actually do.
• 24:35
  Speaker 3: We'll see how long it takes for a lawsuit to
• 24:37
  Speaker 3: be filed challenging one of Trump's executive orders. Thanks so much, David.
• 24:43
  Speaker 3: That's Professor David Super of Georgetown Law. I'm June Grosso.
• 24:47
  Speaker 3: When you're listening to Bloomberg, Chexas is one of nineteen
• 24:51
  Speaker 3: states that have passed laws in the last two years
• 24:54
  Speaker 3: requiring visitors to poorn websites to verify their age, and
• 24:58
  Speaker 3: this week the Supreme Court grapple with the constitutionality of
• 25:02
  Speaker 3: the Texas law. Chief Justice John Roberts and Justice Amy
• 25:06
  Speaker 3: Cony Barrett expressed concerns about how easily teenagers can get
• 25:11
  Speaker 3: access to porn these days, with just the click of
• 25:14
  Speaker 3: a button.
• 25:15
  Speaker 6: Technological access to pornography obviously has exploded.
• 25:21
  Speaker 8: I mean kids can get online porn through gaming systems, tablets, phones, computers.
• 25:29
  Speaker 8: Let me just say that content filtering for all those
• 25:31
  Speaker 8: different devices, I can say from personal experience, is difficult
• 25:34
  Speaker 8: to keep up with. And I think that the explosion
• 25:38
  Speaker 8: of addiction to online porn has shown that content filtering
• 25:42
  Speaker 8: isn't working.
• 25:43
  Speaker 3: But the Free Speech Coalition, an adult entertainment industry trade group,
• 25:47
  Speaker 3: is challenging the law, saying it violates the privacy of
• 25:51
  Speaker 3: adults by requiring them to submit personal identifying information online,
• 25:57
  Speaker 3: making them vulnerable to hacking or tracking. Much of the
• 26:01
  Speaker 3: arguments centered on what type of legal standard should be
• 26:04
  Speaker 3: used in reviewing the law. Here's Justice Katanji Brown Jackson.
• 26:08
  Speaker 9: I thought the work of rational basis review and strict
• 26:13
  Speaker 9: scrutiny was to evaluate whether this is too burdensome. That
• 26:17
  Speaker 9: we say, because the adults have a certain scope of
• 26:21
  Speaker 9: First Amendment rights, you can only impose a burden that
• 26:24
  Speaker 9: is the least restrictive way of reaching your compelling interests.
• 26:28
  Speaker 3: Joining me is First Amendment expert Eugene Vollick, a professor
• 26:32
  Speaker 3: at UCLA Law School, Eugene Justice Sonia Sotomayor said, the
• 26:37
  Speaker 3: issue is the level of scrutiny to be applied to
• 26:40
  Speaker 3: the law. Is that the real issue in the case.
• 26:43
  Speaker 1: It is an issue, but if in some respects a
• 26:46
  Speaker 1: matter of legal labeling, there's a deeper issue behind. If
• 26:50
  Speaker 1: you just step back. We can think of two kinds
• 26:53
  Speaker 1: of speech. One is speech that holds within a First
• 26:56
  Speaker 1: Amendment exception. Could be true threats of criminal content, could
• 27:01
  Speaker 1: be incitement to crimes. It could be obscenity in the
• 27:04
  Speaker 1: sense of hardcore pornography that is illegal for everybody. That
• 27:08
  Speaker 1: kind of speech this was in a First to Ament exception.
• 27:11
  Speaker 1: It's constitutionally unprotected once you apply the right test to
• 27:15
  Speaker 1: determine whether it fits into one of those categories. At
• 27:18
  Speaker 1: that point, restrictions on that speech might be seen as
• 27:22
  Speaker 1: justifiable so long as there's a so called rational basis
• 27:26
  Speaker 1: for them, which is to say, they'll be upheld again
• 27:28
  Speaker 1: once the court concludes the speech is unprotected. Second category
• 27:32
  Speaker 1: of speeches all sorts of other speech, political advocacy, scientific speech,
• 27:38
  Speaker 1: discussion about personal matters that is protected. If the government
• 27:41
  Speaker 1: wants to restrict that based on its content, it really
• 27:44
  Speaker 1: does have to show there's a compelling government interest. The
• 27:48
  Speaker 1: law is the least restrictive way of serving that interest.
• 27:52
  Speaker 1: It's a very hard standard of the show. But there
• 27:54
  Speaker 1: is this third category that the Court has recognized over
• 27:58
  Speaker 1: the decades, and that is speech that is unprotected for minors,
• 28:04
  Speaker 1: so called harmful to minors or obsceness to minors, therefore
• 28:08
  Speaker 1: unacceptable to be distributed to minors, but at the same
• 28:11
  Speaker 1: time is constitutionally protected for adults. A lot of pornography
• 28:15
  Speaker 1: is that way. It's basically protected for adults, but if
• 28:20
  Speaker 1: you're trying to distribute it to minors, it is constitutionally unprotected.
• 28:24
  Speaker 1: The question is what happens when there are laws that
• 28:27
  Speaker 1: limit speech within this kind of weird intermediate category, and
• 28:32
  Speaker 1: at the same time those laws pretty much invariably also
• 28:37
  Speaker 1: burden speech that is aimed at adults or that will
• 28:40
  Speaker 1: be received by adults. So the question is, how do
• 28:43
  Speaker 1: you reconcile the permissibility of trying to shield miners with
• 28:48
  Speaker 1: the fact that any sit restriction will impost unburdens on
• 28:51
  Speaker 1: adults and h screening will in particular interfere in some
• 28:55
  Speaker 1: measure with adults privacy because it might require them to
• 28:58
  Speaker 1: identify themselves the way. Those are the questions that the
• 29:02
  Speaker 1: Court was really dealing with.
• 29:04
  Speaker 3: The Fifth Circuit upheld the Texas law by relying on
• 29:08
  Speaker 3: a nineteen sixties case about a New York bookseller verifying
• 29:13
  Speaker 3: the age of customers before selling adult material. Was that
• 29:18
  Speaker 3: the case that they should have been relying on.
• 29:21
  Speaker 1: So the problem is that the Court has two presidents
• 29:24
  Speaker 1: that are pretty close to on point and the point
• 29:27
  Speaker 1: in pretty different directions. So in nineteen sixty eight, the
• 29:31
  Speaker 1: Supreme Court upheld, in a case called Ginenberg versus New York,
• 29:35
  Speaker 1: upheld a law that basically said, it's the illegal to
• 29:39
  Speaker 1: sell certain pornographic materials that are protected for adults. It's
• 29:43
  Speaker 1: illegal to sell them to minors, and illegal to do
• 29:46
  Speaker 1: that if you know the person owns as a minor
• 29:49
  Speaker 1: or reasonably should know the person as a minor. And
• 29:52
  Speaker 1: one way of determining the law said is whether the
• 29:55
  Speaker 1: one as a minor is by parting the person by
• 29:57
  Speaker 1: asking to see an it. And on the other hand,
• 29:59
  Speaker 1: if somebody comes in and they looked kind of borderline
• 30:02
  Speaker 1: and you don't card them, well, then you could be
• 30:04
  Speaker 1: criminally punished because you reasonably should have known that the
• 30:07
  Speaker 1: person was a miner's. But then, in Ashcrap the ACLU Too,
• 30:11
  Speaker 1: a two thousand and four case, the Supreme Court struck
• 30:14
  Speaker 1: down a law that aimed at shielding miners on the
• 30:18
  Speaker 1: Internet from this kind of harmful to minors of seen
• 30:22
  Speaker 1: as to minors of material. And it said, well, on
• 30:25
  Speaker 1: the Internet, there are other alternatives that you could use
• 30:28
  Speaker 1: that avoid the burden on adults. For example, filtering, so
• 30:33
  Speaker 1: having stopped or running on the computer that filters out
• 30:37
  Speaker 1: certain pronographic websites in the discretion of the computer's owner,
• 30:41
  Speaker 1: who presumably would be the parent. So those presidents points
• 30:44
  Speaker 1: in opposite directions. Now, in some sense, and probably in
• 30:48
  Speaker 1: a substantial sense, ASHCRAPCLU too seems more on points because
• 30:52
  Speaker 1: it is actually factually very similar. It also involved internet.
• 30:56
  Speaker 7: On the other hand, the.
• 30:57
  Speaker 1: Court there was really quite tentative, and it said, well,
• 31:00
  Speaker 1: a lot depends on fast changing technology. Justice Briar had
• 31:05
  Speaker 1: an sensing opinion where he said, look, filtering isn't really
• 31:08
  Speaker 1: that effective.
• 31:10
  Speaker 3: Filtering didn't seem to get such good reviews by the
• 31:13
  Speaker 3: justices at the oral arguments.
• 31:15
  Speaker 1: A lot of justices were pretty skeptical about filtering, like
• 31:19
  Speaker 1: after twenty extra years of experience and twenty years extra
• 31:23
  Speaker 1: years of technological development. Their view was, you know, filtering
• 31:27
  Speaker 1: when every child has a smartphone and access friends who
• 31:30
  Speaker 1: have smartphones and such, just isn't going to do much.
• 31:32
  Speaker 1: So that's why some of the justices at least seemed
• 31:36
  Speaker 1: a lot more open stuffline Gibsburg and suggesting that, look,
• 31:40
  Speaker 1: this is just the online analog of parting people as
• 31:44
  Speaker 1: was used with porn stores.
• 31:46
  Speaker 3: What standard of review were most of the justices leaning toward?
• 31:52
  Speaker 1: I think quite a few of the justices were open
• 31:55
  Speaker 1: to strict scrutiny, in part because Ashcart the ACLU too
• 31:58
  Speaker 1: did apply that. And then there are other cases not
• 32:02
  Speaker 1: quite as square of that point, but dealing with technologically
• 32:05
  Speaker 1: distributed pornography and electronically distributed pornography, which also applied strict scrupeny.
• 32:10
  Speaker 7: The real question is.
• 32:11
  Speaker 1: What does that end up meaning, Because even the challenger said, well,
• 32:15
  Speaker 1: in this situation, some laws, some regulations might pass strict
• 32:19
  Speaker 1: screw It's just that the particular Texas law doesn't, partly
• 32:22
  Speaker 1: for technical reasons having to do the law, and partly
• 32:25
  Speaker 1: because filtering is the less restrictive offer of one thing.
• 32:28
  Speaker 1: For example, that the challenger said is filtering is actually
• 32:33
  Speaker 1: in some respects more effective because filtering can deal with
• 32:37
  Speaker 1: foreign port site, whereas the Texas law would have no
• 32:39
  Speaker 1: effect on foreign porn sites if the foreign company has
• 32:43
  Speaker 1: no assets in Texas and omplaes in Texas. So the
• 32:46
  Speaker 1: challengers say this particular law would be struck down. I
• 32:50
  Speaker 1: think majority of the court would say at least certain
• 32:53
  Speaker 1: laws should be upheld. Majority of the court also seem
• 32:56
  Speaker 1: to be opened to some kind of online age verification.
• 33:00
  Speaker 1: So I think their view was states probably have the
• 33:04
  Speaker 1: authority to require some kinds of age verification as a
• 33:08
  Speaker 1: backstop to parent level filtering and device level filtering. That
• 33:13
  Speaker 1: they could try to wear belt in suspenders in this
• 33:16
  Speaker 1: kind of situation in order to provide more effectiveness of
• 33:20
  Speaker 1: shielding biners well as maybe not this particular law. Maybe
• 33:25
  Speaker 1: a law would have to provide more privately protective age
• 33:28
  Speaker 1: verification options. For example. There's also sounded like some sympathy
• 33:33
  Speaker 1: among some justices to kind of punt a little bit,
• 33:36
  Speaker 1: to say, the right standard district scrutiny, and we're going
• 33:39
  Speaker 1: to send it back to the Fifth Circuit, to the
• 33:41
  Speaker 1: Federal appellate Court. We're going to uphel the law to
• 33:44
  Speaker 1: reconsider the issue and to see whether the district court
• 33:48
  Speaker 1: was right in saying that, well, the law failed strict
• 33:51
  Speaker 1: scruit me. Or maybe this circus might say no, the
• 33:54
  Speaker 1: law actually passes strict scrutiny, or do something in between.
• 33:58
  Speaker 1: So that would only require the courts to choose the
• 34:02
  Speaker 1: strict scrutiny approach versus the rational basis approach and then
• 34:06
  Speaker 1: leave application of the standards to lower courts. Justices sometimes
• 34:10
  Speaker 1: like to do that, especially when the case looks really
• 34:13
  Speaker 1: complicated and really factly them as well.
• 34:16
  Speaker 3: So you think that it's most likely that they're going
• 34:18
  Speaker 3: to remand this to the Fifth Circuit.
• 34:21
  Speaker 1: Oh, I never make predictions really about the future, and
• 34:24
  Speaker 1: especially about the future on the court. Sometimes I make predictions,
• 34:28
  Speaker 1: but here the argument I don't think gave a clear
• 34:32
  Speaker 1: answer as a bad question. Some justices were open to that.
• 34:37
  Speaker 1: You know, if I had to bet, I would probably
• 34:39
  Speaker 1: say that they would say strict scrutiny applies. But whether
• 34:43
  Speaker 1: they would just say that and leave it entirely to
• 34:47
  Speaker 1: the Circuit of Relfe more guidance to the Fifth Circuit,
• 34:50
  Speaker 1: that is a harder question.
• 34:51
  Speaker 3: Texas is one of nineteen states that have these age
• 34:56
  Speaker 3: verification laws. So how would this apply to the other
• 35:00
  Speaker 3: states or would it be fact based?
• 35:03
  Speaker 1: Well, it would be both. If the court says, well,
• 35:06
  Speaker 1: the right standard is even if you're aiming at shielding children,
• 35:11
  Speaker 1: you've got to show that this is the means that
• 35:13
  Speaker 1: is least restrictive of adult access. That strict scrutiny standard
• 35:17
  Speaker 1: would apply to all stains. On the other end of
• 35:19
  Speaker 1: the court says nope, once you're shielding children at least
• 35:23
  Speaker 1: unless the burden and adults is extraordinarily high, well, then
• 35:27
  Speaker 1: in that case they're going to hold it that too
• 35:29
  Speaker 1: would apply to other sticks. On the other hand, are
• 35:31
  Speaker 1: particular features of this particular law. So for example, this law,
• 35:36
  Speaker 1: the state says, well, we are protecting privacy and diminishing
• 35:40
  Speaker 1: the chilling effects on adults by essentially for visiting psyche
• 35:44
  Speaker 1: the douage verification from retaining the data. What the challengers say,
• 35:49
  Speaker 1: Nothing in the law says that you can't give away
• 35:53
  Speaker 1: the data or sell the data. So long as you
• 35:55
  Speaker 1: don't retain that you can sell it to someone else. Well,
• 35:59
  Speaker 1: that's a feature that I don't know how many of
• 36:01
  Speaker 1: the others states have, but I imagine some of them
• 36:03
  Speaker 1: don't have this feature. So the court focuses on that.
• 36:06
  Speaker 1: It says, well, that makes this law constitutional because either
• 36:10
  Speaker 1: sales strips food new or because it's a too grave
• 36:12
  Speaker 1: a burden on adult access. Well, that might have very
• 36:16
  Speaker 1: little event on other state laws that don't have this
• 36:19
  Speaker 1: peculiar feature.
• 36:20
  Speaker 3: Thanks so much, Eugene Best, Professor Eugene Volleck of UCLA
• 36:24
  Speaker 3: Law School. And that's it for this edition of The
• 36:27
  Speaker 3: Bloomberg Law Show. Remember you can always get the latest
• 36:30
  Speaker 3: legal news on our Bloomberg Law Podcast. You can find
• 36:33
  Speaker 3: them on Apple Podcasts, Spotify, and at www dot Bloomberg
• 36:37
  Speaker 3: dot com, slash podcast Slash Law, And remember to tune
• 36:41
  Speaker 3: into The Bloomberg Law Show every weeknight at ten pm
• 36:44
  Speaker 3: Wall Street Time. I'm June Grosso, and you're listening to
• 36:48
  Speaker 3: Bloomberg