Latest / Bloomberg Law / SBF's Appeal, TikTok Ban & Abortion on Ballots

Transcript

SBF's Appeal, TikTok Ban & Abortion on Ballots · Bloomberg Law

• 0:03
  Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.
• 0:09
  Speaker 2: Sam Bankmin Freed is appealing his conviction and asking for
• 0:13
  Speaker 2: a new trial. The FDx founder argues that everyone rushed
• 0:17
  Speaker 2: to judgment after the company's collapse and that fair trial
• 0:21
  Speaker 2: principles were swept away in a quote sentenced first verdict
• 0:26
  Speaker 2: afterwards tsunami Bankman Freed was convicted in November of orchestrating
• 0:31
  Speaker 2: a year's long, multi billion dollar fraud at FTX, the
• 0:35
  Speaker 2: crypto empire that imploded in late twenty twenty two. He's
• 0:39
  Speaker 2: serving a twenty five year prison sentence imposed by federal
• 0:43
  Speaker 2: Judge Lewis Kaplan, and in the brief, blame is placed
• 0:46
  Speaker 2: on the judge. Bankman Freed's attorneys claimed that many of
• 0:50
  Speaker 2: the judge's rulings were not just erroneous, but unbalanced, repeatedly
• 0:56
  Speaker 2: putting a thumb on the scale to help the government
• 0:58
  Speaker 2: and thwart the defense. His lawyers asked the Second Circuit
• 1:02
  Speaker 2: to reverse his conviction and assign the case to a
• 1:05
  Speaker 2: new judge for a retrial. Joining me is Bloomberg Legal
• 1:08
  Speaker 2: reporter Christ Mesh, who covered the trial and has read
• 1:11
  Speaker 2: the legal brief a lot of it is a direct
• 1:14
  Speaker 2: attack on the trial judge Lewis Kaplan, and not just
• 1:19
  Speaker 2: incorrect rulings, but that he had a bias against Sam
• 1:24
  Speaker 2: bankman Fried and his trial team.
• 1:26
  Speaker 3: Yeah, it's a very interesting appeal. You know, most criminal
• 1:29
  Speaker 3: defendants who are convicted almost always launch an appeal, especially
• 1:33
  Speaker 3: white collar defendants, and they often attack legal rulings that
• 1:38
  Speaker 3: are made during the trial, whether it be during jury's
• 1:40
  Speaker 3: selection or you know, what witnesses were allowed to testify about,
• 1:45
  Speaker 3: and various things like that. But this appeal seems to
• 1:48
  Speaker 3: just kind of go beyond the normal challenges to legal
• 1:51
  Speaker 3: procedure and, like you said, directly attacks the trial judge
• 1:55
  Speaker 3: for a wide variety of what Sam bankwin Fried's lawyer
• 2:00
  Speaker 3: say are reversible errors, that he was biased against him
• 2:03
  Speaker 3: from the beginning. The one thing they really attack is
• 2:06
  Speaker 3: his decision to you know, not allow bankin Free to
• 2:11
  Speaker 3: use the defense that he was, you know, relying on
• 2:14
  Speaker 3: good faith on lawyer's advice, and that attacks what was
• 2:17
  Speaker 3: widely seen is kind of an unusual move to question
• 2:21
  Speaker 3: Sam bankmin Free outside of the presence of the jury
• 2:24
  Speaker 3: about his interactions with lawyers. It was very unusual move,
• 2:28
  Speaker 3: and don't see that a lot in trials, so it's
• 2:32
  Speaker 3: very reasonable to see his lawyers go after that. But
• 2:35
  Speaker 3: they've also kind of just talked about the fact that
• 2:38
  Speaker 3: the judge routinely had issues with his lawyers during the case,
• 2:43
  Speaker 3: you know, often interrupted cross examinations and frequently interrupted Sam's
• 2:48
  Speaker 3: own testimony to interject, and often just didn't think he
• 2:52
  Speaker 3: was telling the truth. So whether or not that is
• 2:55
  Speaker 3: a successful defense is yet to be seen. Trial does
• 2:59
  Speaker 3: or generally given a big leach when it comes to
• 3:03
  Speaker 3: their decisions and trials, but this is a pretty significant
• 3:07
  Speaker 3: argument on appeal, and it's going to force the government
• 3:10
  Speaker 3: to respond in length, and I anticipate that we're going
• 3:14
  Speaker 3: to hear a lot of questions from the appeals court
• 3:16
  Speaker 3: judges once this gets to an oral argument.
• 3:18
  Speaker 2: Well, as I recall, the judge was sarcastic at times
• 3:25
  Speaker 2: with the defense counsel and the defense.
• 3:28
  Speaker 3: For sure, I mean more than I've seen in many
• 3:30
  Speaker 3: criminal trials where judges are generally deferential and more serious
• 3:35
  Speaker 3: and more just kind of wedded to procedure, and Judge
• 3:37
  Speaker 3: Kaplan clearly was I don't want to say annoyed, because
• 3:41
  Speaker 3: you know, a judge's temperament on the bench and not
• 3:43
  Speaker 3: necessarily reflection of their personal animosity and more just you know,
• 3:47
  Speaker 3: an annoyance with failure to adhere to procedure and things
• 3:51
  Speaker 3: like that. But it was an unusual amount of in
• 3:54
  Speaker 3: trial commentary before the jury that I haven't really seen
• 3:58
  Speaker 3: in a lot of criminal trials.
• 3:59
  Speaker 2: Also, so you mentioned this, but they argued that so
• 4:03
  Speaker 2: before he allowed Sam bankmin Free to testify, he had
• 4:07
  Speaker 2: a little sort of wadeer of Sam Bankman Freed. He
• 4:10
  Speaker 2: put him on the stand and he asked him questions,
• 4:12
  Speaker 2: which was really unusual for a defendant who's going to testify.
• 4:17
  Speaker 2: And the Bank and Fried's attorneys say that was an
• 4:19
  Speaker 2: unprecedented proceeding that permitted a prosecutor to conduct cross examination
• 4:25
  Speaker 2: going way beyond the supposed purpose of this preview hearing.
• 4:29
  Speaker 2: I mean, it was a strange hearing.
• 4:31
  Speaker 3: There's no doubt about that. Basically, his lawyers say that
• 4:34
  Speaker 3: he was essentially deposed by the judge, especially when a
• 4:38
  Speaker 3: defendant testifies, as we all know, that is a rarity
• 4:41
  Speaker 3: in the United States criminal trials, just because of the
• 4:44
  Speaker 3: potential issues it raises in terms of what you can
• 4:47
  Speaker 3: be questioned about across examination, and it opens the door
• 4:50
  Speaker 3: to a whole lot of other acts that may not
• 4:52
  Speaker 3: have come into the case had you not got on
• 4:55
  Speaker 3: the stand. But the judge basically like not basically, you know,
• 5:00
  Speaker 3: Bankman free directly without the jury in there, and it
• 5:04
  Speaker 3: was just a very unusual proceeding. It was kind of
• 5:07
  Speaker 3: hard to believe it was happening at the time, but
• 5:09
  Speaker 3: you know, the judge wanted to hear from him, and
• 5:12
  Speaker 3: he was clearly skeptical of his testimony before he questioned him.
• 5:16
  Speaker 3: He was skeptical of his testimony when he questioned him,
• 5:19
  Speaker 3: and then he was skeptical of his testimony when he
• 5:21
  Speaker 3: got on the stand. So that does seem to be
• 5:24
  Speaker 3: the heart of their attack on this procedure. And if
• 5:27
  Speaker 3: there is anything that might give the appeals court judges pause,
• 5:30
  Speaker 3: it might be that. But like I said, trial judges
• 5:33
  Speaker 3: are often given a lot of deference in terms of
• 5:36
  Speaker 3: their decisions. Eddy appeal is a long shot from a
• 5:39
  Speaker 3: jury conviction.
• 5:40
  Speaker 2: They do have a lot of a lot of latitude,
• 5:42
  Speaker 2: but there is a point where it stops. They also
• 5:46
  Speaker 2: said that the jury only saw half the picture because
• 5:50
  Speaker 2: the judge didn't allow some critical evidence in to back
• 5:54
  Speaker 2: up Sam Bankman freed contended that FTX had enough funds
• 5:58
  Speaker 2: to cover customer with so the government's narrative that the
• 6:02
  Speaker 2: money was lost permanently was incorrect. And in fact fgx's
• 6:08
  Speaker 2: customers are going to receive one hundred percent of their
• 6:10
  Speaker 2: money back, right right.
• 6:12
  Speaker 3: That is another key part of their appeal. And in fact,
• 6:15
  Speaker 3: there's an interesting parallel to that in the case of
• 6:18
  Speaker 3: Martin Trelley, who was you know, convicted a trial but
• 6:22
  Speaker 3: also argued that his hedge fund investors hadn't lost any money.
• 6:26
  Speaker 3: There was plenty of testimonies during his trial that, you know,
• 6:30
  Speaker 3: that they had actually made money rather than lost money
• 6:33
  Speaker 3: from the alleged conduct. But in the end that didn't
• 6:35
  Speaker 3: succeed for Martin, and it might be hard to say
• 6:38
  Speaker 3: that would succeed here.
• 6:39
  Speaker 2: Something that I thought was unusual when it was happening.
• 6:43
  Speaker 2: I don't know that it's reversible error, but they say
• 6:47
  Speaker 2: that the judge quote improperly brought a jurors to reach
• 6:51
  Speaker 2: a quick verdict because he invited them on the first
• 6:54
  Speaker 2: day to stay late and he offered rides home and meals.
• 6:59
  Speaker 2: I thought that was unusual. I mean, the trial had
• 7:01
  Speaker 2: been so long, what was the rush.
• 7:04
  Speaker 3: Yeah, that took a lot of people by surprise in
• 7:07
  Speaker 3: the press room and among the observers that day when
• 7:10
  Speaker 3: that happened, and a lot of us wondered if that
• 7:13
  Speaker 3: wouldn't brought the jury to come to a verdict that day,
• 7:15
  Speaker 3: and in the end they did. I think it was
• 7:17
  Speaker 3: about twenty or thirty minutes before eight o'clock. So that
• 7:21
  Speaker 3: is something they definitely probably shouldn't have raised in the
• 7:25
  Speaker 3: appeal brief and did, and it will be questioned, I don't.
• 7:28
  Speaker 3: You know, Judges often have a lot of latitude in
• 7:32
  Speaker 3: terms of how they instruct the jury. It's not unusual
• 7:35
  Speaker 3: to see a judge ask the jury if they want
• 7:38
  Speaker 3: to stay later in a case, you know, what time
• 7:42
  Speaker 3: they want to go to. They're often very hesitant to
• 7:45
  Speaker 3: kind of give them any kind of formal parameters for time.
• 7:49
  Speaker 3: You know. Generally, you know, work on a regular schedule
• 7:52
  Speaker 3: nine to five whenever the court is open, They go
• 7:55
  Speaker 3: home at a regular time during the day during the trial.
• 7:58
  Speaker 3: But when it comes to liberations, things are a lot looser,
• 8:02
  Speaker 3: and the judge is usually pretty hesitant to kind of
• 8:06
  Speaker 3: restrain them in any way from their deliberations if they
• 8:10
  Speaker 3: want to stay late and continue talking if they think
• 8:12
  Speaker 3: they're making headway, he will allow them to. But hearing
• 8:15
  Speaker 3: him directly say you can stay late tonight, you know,
• 8:18
  Speaker 3: as late as you need and promising the meals and
• 8:21
  Speaker 3: rides was was definitely unusual. Whether or not it's reversible error,
• 8:26
  Speaker 3: Like you said, who knows.
• 8:28
  Speaker 2: We've said unusual quite a few times in this short conversation.
• 8:32
  Speaker 3: There's a lot of different things about this case.
• 8:34
  Speaker 2: We should mention that Judge Kaplan has been on the
• 8:37
  Speaker 2: bench for a long time and is a very highly
• 8:40
  Speaker 2: respected judge.
• 8:42
  Speaker 3: There's no question about that. And he's had a lot
• 8:44
  Speaker 3: of experience with cases. I think he thinks he knows
• 8:47
  Speaker 3: the law very well. And as I've said numerous times
• 8:51
  Speaker 3: during this interview, judges have a lot of especially trial
• 8:54
  Speaker 3: judges have a lot of leeway. Now it's not inconceivable
• 8:58
  Speaker 3: that some part of free trial procedure could be caught
• 9:03
  Speaker 3: into question by the appeals court then maybe results in
• 9:06
  Speaker 3: a new trial or something, but it's hard to hard
• 9:10
  Speaker 3: to say at this point.
• 9:11
  Speaker 2: And when the judge sentenced bankman freed to twenty five years,
• 9:17
  Speaker 2: I mean, did he say anything during the sentencing that
• 9:19
  Speaker 2: hinted at bias?
• 9:21
  Speaker 3: I don't know. About bias. He didn't believe them. He
• 9:24
  Speaker 3: didn't believe Bankment freed. He essentially said he's a risk
• 9:28
  Speaker 3: to commit more crimes. He called him out for his lives,
• 9:31
  Speaker 3: and he was whether or not he was biased or not,
• 9:34
  Speaker 3: he just thought that he was clear that he thought
• 9:36
  Speaker 3: that he was not telling the truth.
• 9:38
  Speaker 2: The state star witness Caroline Ellison, the former girlfriend of
• 9:42
  Speaker 2: Sam bankmin Fried, is going to be sentenced next week
• 9:46
  Speaker 2: by Judge Kaplan. Her lawyers filed papers asking that she'd
• 9:51
  Speaker 2: be given no jail time at all, citing her cooperation.
• 9:55
  Speaker 2: Do you know what the range is that she's facing, Well, the.
• 9:59
  Speaker 3: Guy lines range is life in prison, which is not
• 10:05
  Speaker 3: going to happen, and it is driven by the guide,
• 10:07
  Speaker 3: by the loss in the case, or the alleged losses
• 10:10
  Speaker 3: in the case, in the size of the fraud.
• 10:13
  Speaker 2: Her attorney's asked for no time, and the Probation Department
• 10:17
  Speaker 2: said no time, which I thought was unusual.
• 10:20
  Speaker 3: That's not really that unusual for cooperating witnesses. Yes, they're
• 10:24
  Speaker 3: asking for time to serve with three years of supervised relief,
• 10:27
  Speaker 3: and they're citing her extraordinary cooperation with that. I don't
• 10:30
  Speaker 3: know what the government will last. We'll see when they
• 10:32
  Speaker 3: file their sensing memo sometime this week.
• 10:35
  Speaker 2: The sentence will be solely up to Judge Kaplan. We'll
• 10:39
  Speaker 2: see how much he credits her cooperation. Thanks so much, Chris.
• 10:44
  Speaker 2: That's Bloomberg. Legal reporter Chris dol Mesh will be sentenced
• 10:48
  Speaker 2: in November and October, respectively. Coming up next on the
• 10:51
  Speaker 2: Bloomberg Laws Show. Since the reversal of Roe v. Wade
• 10:55
  Speaker 2: in twenty twenty two, every ballot measure on abortion rights
• 10:59
  Speaker 2: has been approved by voters. This November, an unprecedented number
• 11:03
  Speaker 2: of abortion initiatives are on state ballots, but some may
• 11:07
  Speaker 2: face uphill battles after rulings by state courts. You're listening
• 11:12
  Speaker 2: to Bloomberg. Since the overturning of Roe v. Wade in
• 11:17
  Speaker 2: twenty twenty two, legal battles over abortion laws have been
• 11:21
  Speaker 2: fought across the country in the more than twenty Republican
• 11:24
  Speaker 2: led states that have banned or restricted abortions. This November,
• 11:29
  Speaker 2: the battle will be decided by voters, as a record
• 11:32
  Speaker 2: number of abortion initiatives are on the ballots in at
• 11:35
  Speaker 2: least nine states. In the last two years, every ballot
• 11:39
  Speaker 2: measure preserving abortion rights has been approved by voters, but
• 11:43
  Speaker 2: can that record be preserved after legal Challenges by abortion
• 11:48
  Speaker 2: opponents have led to ballot measures with language describing a
• 11:51
  Speaker 2: fetus as an unborn human being, others with financial statements
• 11:56
  Speaker 2: about the negative fiscal impact of abortions, and even opposing
• 12:00
  Speaker 2: abortion measures on the same ballot in one state. Joining
• 12:04
  Speaker 2: me is Mary Ziegler, a professor at UC Davis Law School.
• 12:08
  Speaker 2: How would you characterize the challenges to abortion initiatives in general?
• 12:13
  Speaker 2: Are they technical or substantive?
• 12:16
  Speaker 4: Most of them are technicals. There are a lot of
• 12:18
  Speaker 4: them that involve whether a ballot measure satisfies what's called
• 12:21
  Speaker 4: the single subject requirement. There are challenges about the procedures
• 12:26
  Speaker 4: by which signatures were gathered or submitted. So most of
• 12:31
  Speaker 4: them either involve election law or the requirements for a
• 12:35
  Speaker 4: ballot to be put before voters. They don't actually deal
• 12:38
  Speaker 4: with substance.
• 12:39
  Speaker 2: Let's look at some of the states where they have
• 12:42
  Speaker 2: ballot measures. So in Arkansas, the Secretary of State rejected
• 12:47
  Speaker 2: it because they said they hadn't followed the rules to
• 12:50
  Speaker 2: paid canvassers.
• 12:52
  Speaker 4: Yeah, so essentially the people who were submitting the ballot
• 12:55
  Speaker 4: measure in Arkansas had been submitting required paper work for
• 13:00
  Speaker 4: paid canvassers on a rolling basis, and then when they
• 13:03
  Speaker 4: reached the requisite number of signatures, had finalized the paperwork.
• 13:07
  Speaker 4: The state complained that they hadn't essentially filed everything at once,
• 13:11
  Speaker 4: and as a result that it was hard for the
• 13:14
  Speaker 4: secretary to evaluate, especially paperwork about whether paid canvassors had
• 13:19
  Speaker 4: received training about signature gathering. So it was about that
• 13:23
  Speaker 4: paperwork and the timing of its submission.
• 13:25
  Speaker 2: Is it going to be on the ballot or no.
• 13:28
  Speaker 4: So the Arkansas Supreme Court affirmed that decision and that
• 13:32
  Speaker 4: will not be going before Arkansas voters in November.
• 13:35
  Speaker 2: So it was just because the Secretary of State was
• 13:37
  Speaker 2: finding it hard to count the signatures.
• 13:40
  Speaker 4: Yeah, I mean, it's it's pretty technical, right, So, I mean,
• 13:42
  Speaker 4: the dissenting judge and the Supreme Court's opinion said, essentially,
• 13:46
  Speaker 4: you know, all of the requisite paperwork was there, and
• 13:50
  Speaker 4: the complaint was about when and how it arrived. But substantively,
• 13:54
  Speaker 4: there were all the tools needed for the Secretary caarry
• 13:57
  Speaker 4: to evaluate the signatures. And the majority of actually said,
• 14:01
  Speaker 4: you know, we're going to enforce the letter of the law,
• 14:03
  Speaker 4: you know, a kind of formalism regardless of whether there
• 14:07
  Speaker 4: would have been a way to evaluate the signatures in
• 14:10
  Speaker 4: the training either way.
• 14:12
  Speaker 2: So still with the A's Arizona. So first, on the
• 14:16
  Speaker 2: proposed constitutional amendment, there's a description of a fetus as
• 14:20
  Speaker 2: an unborn human being that was approved by the state
• 14:23
  Speaker 2: Supreme Court.
• 14:24
  Speaker 4: Correct, Yeah, so the state Supreme Court approved that as
• 14:26
  Speaker 4: a description that could go before voters. Again, it's a
• 14:29
  Speaker 4: slightly different question because the Supreme Court didn't actually prevent
• 14:32
  Speaker 4: the measure from going before voters, but suggested that that
• 14:36
  Speaker 4: language wasn't misleading and that voters could, you know, essentially
• 14:40
  Speaker 4: wouldn't be adversely affected by it.
• 14:43
  Speaker 2: So I take it a lot of these challenges are
• 14:45
  Speaker 2: to the wording of the ballot measure, which can confuse.
• 14:49
  Speaker 4: Voters, right, I mean, I think that the objection to
• 14:52
  Speaker 4: that language was that it was very artisan, you know,
• 14:55
  Speaker 4: that it would essentially convince voters that measure should be rejected,
• 15:01
  Speaker 4: and that it took a position that was more aligned
• 15:03
  Speaker 4: with the pro life or anti abortion movement than a
• 15:06
  Speaker 4: neutral position. And so that was the objection that the
• 15:10
  Speaker 4: state Supreme Court rejected.
• 15:12
  Speaker 2: One of the proponents of abortion rights said that it's
• 15:16
  Speaker 2: going to be the longest ballot in state history. It's
• 15:19
  Speaker 2: going to have two pages and thirteen ballot measures taking
• 15:23
  Speaker 2: up the back of the second page. Was that inadvertent
• 15:27
  Speaker 2: or was that done to, you know, make it harder
• 15:29
  Speaker 2: to find the abortion measure?
• 15:31
  Speaker 3: Yeah?
• 15:32
  Speaker 4: I think that it was done to potentially diffuse these
• 15:35
  Speaker 4: kinds of legal challenges. I think supporters of abortion rights
• 15:39
  Speaker 4: in Arizona are aware of the fact that the Arizona
• 15:43
  Speaker 4: Supreme Court had allowed, you know, a pre Civil War
• 15:47
  Speaker 4: abortion band to go into effect. There's an assumption that
• 15:49
  Speaker 4: the court was and is quite conservative on questions of abortion.
• 15:54
  Speaker 4: So I think this was an effort to be thorough
• 15:56
  Speaker 4: and kind of block those kinds of challenges at the.
• 15:58
  Speaker 2: Past Florida, which it's gotten a lot of news because
• 16:02
  Speaker 2: the governor seems to have pulled out all the stops.
• 16:06
  Speaker 2: There's a Florida Cares website and it has the state
• 16:11
  Speaker 2: seal on it. I mean, has anyone challenged that using
• 16:13
  Speaker 2: the state seal and apparently there's misinformation on there.
• 16:17
  Speaker 4: I don't know if anyone is challenged it yet, but
• 16:19
  Speaker 4: I think this is sort of part of a broader
• 16:22
  Speaker 4: use of state power in Florida to try to block
• 16:24
  Speaker 4: the ballot or at least defeat the ballot initiative after
• 16:27
  Speaker 4: the state's effort to keep the ballot initiative from going
• 16:30
  Speaker 4: before voters failed. We've seen some analogical things happen in
• 16:34
  Speaker 4: Ohio before that state voted on its ultimately successful ballot measure.
• 16:38
  Speaker 4: We may see legal challenges to it, but I think
• 16:41
  Speaker 4: the Florida Supreme Court, like the Arizona Supreme Court, is
• 16:43
  Speaker 4: quite conservative, so those challenges may not work.
• 16:46
  Speaker 2: Governor Ron Dessand has had a squad of election police
• 16:50
  Speaker 2: going to the homes of those whose signatures are on
• 16:53
  Speaker 2: the petition for the abortion measure, questioning them. That has
• 16:58
  Speaker 2: to be at the very least a streful experience. Has
• 17:01
  Speaker 2: that been done before in other states.
• 17:04
  Speaker 4: I mean, it's certainly unusual. We haven't seen this kind
• 17:07
  Speaker 4: of level of I guess you could say intimidation before.
• 17:10
  Speaker 4: Governor Destantus' office argues that there are valid concerns about
• 17:16
  Speaker 4: essentially about fraud in the gathering of ballot signatures that
• 17:20
  Speaker 4: they're investigating. But of course, sending law enforcement of any
• 17:23
  Speaker 4: kind to somebody's door as part of a fraud investigation
• 17:27
  Speaker 4: before voting is even begun is going to have obviously
• 17:30
  Speaker 4: intimidating effects that I don't think are accidental. So I
• 17:33
  Speaker 4: think this is yet another thing that we're seeing in
• 17:36
  Speaker 4: this election of ballot initiatives that we haven't seen much before.
• 17:39
  Speaker 2: Also, the Florida Supreme Court is allowing a financial impact
• 17:43
  Speaker 2: statement to be included alongside the measure on the ballot.
• 17:48
  Speaker 2: That statement says an increase in abortions may negatively affect
• 17:52
  Speaker 2: the growth of state and local revenues over time. Is
• 17:57
  Speaker 2: that the first time that's happened a financial statement like that?
• 18:01
  Speaker 4: To my knowledge, it's the first time that it's appeared
• 18:03
  Speaker 4: on the ballot. Again, in Ohio, we've seen state lawmakers
• 18:07
  Speaker 4: and state resources used to make arguments against a ballot
• 18:10
  Speaker 4: initiative before, so that's not new, But I think the
• 18:13
  Speaker 4: focus on cost is new. I don't think that's surprising, again,
• 18:16
  Speaker 4: because abortion opponents have lost a lot of mass ballot
• 18:19
  Speaker 4: initiative campaigns, and so they're trying new strategies to see
• 18:23
  Speaker 4: if they can change their luck.
• 18:25
  Speaker 2: In Florida, sixty percent of voters are needed to pass
• 18:29
  Speaker 2: the abortion ballot measure. With these measures, is it usually
• 18:34
  Speaker 2: just a majority or sometimes a super majority required?
• 18:39
  Speaker 4: All of the ballot measures we've seen so far. Again,
• 18:41
  Speaker 4: not all of which were designed to codify reproductive rights.
• 18:44
  Speaker 4: Some of them were narrower, like rejecting an anti abortion proposal.
• 18:48
  Speaker 4: All of them just had majority requirements to pass. So
• 18:52
  Speaker 4: this is the first time we've seen a super majority requirement,
• 18:55
  Speaker 4: So it'll be interesting to see if that makes a
• 18:58
  Speaker 4: difference for abortion of oponents. Clearly, in Ohio there was
• 19:01
  Speaker 4: some belief that it would. There was an effort to
• 19:03
  Speaker 4: get Ohioans to raise the threshold for successful ballot measures
• 19:07
  Speaker 4: in a separate ballot measure. It fails, but Florida already
• 19:10
  Speaker 4: has the sixty percent threshold, so it'll be interesting to
• 19:13
  Speaker 4: see if that's enough. The help of working opponents serve
• 19:15
  Speaker 4: the momentum for abortion rights is just too significant.
• 19:19
  Speaker 2: In Nebraska, for the first time in state history, they're
• 19:22
  Speaker 2: going to be conflicting petitions on the same ballot. On Friday,
• 19:27
  Speaker 2: the state's top court ruled unanimously against the argument that
• 19:31
  Speaker 2: the abortion rights amendment violated the state's single subject rule.
• 19:35
  Speaker 2: I think you referred to this before.
• 19:37
  Speaker 4: Single subject rules have been the subject of a whole
• 19:39
  Speaker 4: bunch of litigation in a lot of states. They're applicable
• 19:42
  Speaker 4: in a lot of state constitutional context, and essentially they
• 19:44
  Speaker 4: apply to say that a ballot measure can only discuss
• 19:47
  Speaker 4: a single subject. And the rationale for them is that
• 19:51
  Speaker 4: voters would get confused if you cram too much into
• 19:53
  Speaker 4: a single ballot measure, or particularly if you kind of
• 19:56
  Speaker 4: interpolate a really unpopular proposal into an otherwise popular ballot measure.
• 20:01
  Speaker 4: So the idea behind this suit in Nebraska was that
• 20:05
  Speaker 4: there was more than one subject being covered because the
• 20:08
  Speaker 4: ballot measure addressed abortion, abortion restrictions, and viability, which the
• 20:12
  Speaker 4: opponents said, we're discrete topics, and the Nebraska Supreme Court
• 20:16
  Speaker 4: rejected that idea and said, of course, if there's a
• 20:19
  Speaker 4: right to abortion, that's going to have obvious impact on
• 20:21
  Speaker 4: whether restrictions can be imposed on that right. That's one
• 20:24
  Speaker 4: in the same subjects, and that since the decision of Roe,
• 20:28
  Speaker 4: viability as a concept has been entangled with whether there
• 20:31
  Speaker 4: are abortion rights. But this kind of single subject rule
• 20:34
  Speaker 4: argument had been raised not just in Nebraska but in
• 20:37
  Speaker 4: a variety of other states as well, so we're likely
• 20:39
  Speaker 4: to see more of it.
• 20:41
  Speaker 2: So how will it work with two competing ballot measures.
• 20:45
  Speaker 2: I assume the language in each is going to be different.
• 20:48
  Speaker 4: It sounds so confusing, exactly. So the two Nebraska ballot measures,
• 20:53
  Speaker 4: the one that we were just discussing, the kind of
• 20:55
  Speaker 4: pro abortion rights ballot measure, looks a lot like a
• 20:58
  Speaker 4: lot of other ballot measures in the sense that it's
• 21:00
  Speaker 4: trying to establish some kind of reproductive right. The anti
• 21:04
  Speaker 4: abortion ballot measure kind of plays around with what is
• 21:07
  Speaker 4: currently the status quo in Nebraska, which is that abortion
• 21:10
  Speaker 4: is more or less legal until twelve weeks. But the
• 21:14
  Speaker 4: ballot measure, instead of saying, okay, let's stick with the
• 21:16
  Speaker 4: status quo, constitutionalizes it, meaning there would be no constitutional
• 21:22
  Speaker 4: possibility of allowing abortion after the first trimester. So it's
• 21:27
  Speaker 4: confusing both in the sense that voters have two ballot
• 21:30
  Speaker 4: measures and also because the second ballot measure may feel
• 21:32
  Speaker 4: to voters just like the status quo, but in effect
• 21:35
  Speaker 4: would be putting kind of a constitutional limit on when
• 21:38
  Speaker 4: abortion would be permitted.
• 21:40
  Speaker 2: So whichever measure gets more votes wins or is there
• 21:44
  Speaker 2: a thirty five percent threshold.
• 21:46
  Speaker 4: Yeah, it's kind of confusing.
• 21:48
  Speaker 3: It.
• 21:49
  Speaker 4: My best understanding from talking to people in Nebraska is
• 21:51
  Speaker 4: that if both of them have I mean, obviously the
• 21:54
  Speaker 4: easiest scenario is neither of them have the votes to pass,
• 21:57
  Speaker 4: or only one of them has the vote to pass,
• 21:59
  Speaker 4: in which case of neither of them have the votes
• 22:01
  Speaker 4: to pass, then it's just going to be whatever the
• 22:03
  Speaker 4: status quo is in Nebraska. If both of them have
• 22:07
  Speaker 4: the votes to pass, then that's when it gets complicated.
• 22:09
  Speaker 4: My best understanding is that the one with more votes
• 22:13
  Speaker 4: would be the one that would be enacted into law.
• 22:16
  Speaker 4: But you can bet that if both of them have
• 22:18
  Speaker 4: the votes to pass, that would get litigated.
• 22:21
  Speaker 3: I don't think that we would.
• 22:22
  Speaker 4: Just see that settled straightforwardly. I'd be a little surprised
• 22:25
  Speaker 4: if both of them did have the votes to pass.
• 22:27
  Speaker 4: Of course, because voters are seeing lots of ads that
• 22:30
  Speaker 4: juxtapose them and say that they're diametrically opposed.
• 22:33
  Speaker 2: It seems like with all this the confusion, intimidation, etc.
• 22:37
  Speaker 2: That it becomes even more important that voters be educated
• 22:41
  Speaker 2: about the ballot measures before going to vote.
• 22:44
  Speaker 4: I think that's right. There's also a question of just
• 22:46
  Speaker 4: how much misinformation is really penetrating or not penetrating. So
• 22:52
  Speaker 4: in another example, another single subject challenge and other challenge
• 22:56
  Speaker 4: that failed recently was in Missouri, where a ballot measure
• 22:59
  Speaker 4: will go for voters, and there the strategy has been
• 23:03
  Speaker 4: for conservatives to argue that the ballot measure, which would
• 23:08
  Speaker 4: create a right to reproductive healthcare, will actually force Missouri
• 23:12
  Speaker 4: to legalize cloning and gender affirming care, which they're arguing
• 23:16
  Speaker 4: would fall under the umbrella of reproductive healthcare. The goal there,
• 23:20
  Speaker 4: obviously is to convince Missouri voters who don't support gender
• 23:24
  Speaker 4: affirming care or cloning that this is like a trojan
• 23:26
  Speaker 4: horse that will cover those things when ultimately the interpretation
• 23:30
  Speaker 4: of the ballot initiatives language will be done by the
• 23:33
  Speaker 4: Missouri Supreme Court, which is generally quite conservative. So I
• 23:37
  Speaker 4: think there's also been an effort to confuse voters about
• 23:40
  Speaker 4: exactly what they're voting for. I don't know to what
• 23:43
  Speaker 4: extent that's working. In to what extent voters understand these
• 23:48
  Speaker 4: ballot measures based on what's going on more broadly in
• 23:50
  Speaker 4: their state when it comes to struggles over abortion, but
• 23:54
  Speaker 4: I think that'll be another big question going into the election.
• 23:57
  Speaker 2: Yeah, I mean, so far, every with all these legal
• 24:01
  Speaker 2: challenges having led to language that's unfavorable in some states
• 24:06
  Speaker 2: confusion in others. Even opposing abortion measures on the same
• 24:12
  Speaker 2: ballot in Nebraska could we see some of these initiatives
• 24:15
  Speaker 2: defeated in November for the first time since Roe was overturned.
• 24:20
  Speaker 4: Yeah, it's definitely possible. I mean, it's worth emphasizing, right
• 24:24
  Speaker 4: that what the abortion rights movement is trying to do
• 24:26
  Speaker 4: in this election is objectively harder in a variety of ways.
• 24:29
  Speaker 3: Right.
• 24:29
  Speaker 4: So, there are several states in which ballot measures are
• 24:32
  Speaker 4: going forward that are just much more conservative than any
• 24:34
  Speaker 4: we've seen ballid initiatives in to date. So as much
• 24:37
  Speaker 4: as Ohio as a red state, Ohio is not as
• 24:39
  Speaker 4: conservative as South Dakota or Missouri, right, I mean, we're seeing,
• 24:45
  Speaker 4: for example, a competitive Senate election in Ohio. We're not
• 24:49
  Speaker 4: seeing anything like that in South Dakota.
• 24:51
  Speaker 3: Right.
• 24:52
  Speaker 4: So, one, you're just going to much more conservative states
• 24:55
  Speaker 4: with actual measures backing reproductive rights in other words, not
• 24:59
  Speaker 4: just saying something more incremental like we saw in Kentucky
• 25:02
  Speaker 4: or Montana in twenty twenty two. It's harder because in
• 25:05
  Speaker 4: some instances, like in Florida, they're super majority requirements. It's
• 25:09
  Speaker 4: harder in some instances because the state, as in Florida,
• 25:13
  Speaker 4: is using resources to try to defeat the ballot measures.
• 25:16
  Speaker 4: It's also harder, I think because you're seeing something in
• 25:20
  Speaker 4: a presidential election year where people me who are conservative
• 25:24
  Speaker 4: may change the way they're thinking of this issue in
• 25:26
  Speaker 4: part because they vote the same up and down the ballot.
• 25:29
  Speaker 4: And there's confusion as we see in Nebraska when you
• 25:32
  Speaker 4: have more than one ballot measure that voters can choose
• 25:35
  Speaker 4: between without necessarily understanding the stakes. So I think that
• 25:39
  Speaker 4: it's definitely possible. It's one of the toughest tests, for sure,
• 25:43
  Speaker 4: that we've seen with ballot initiatives since jobs.
• 25:46
  Speaker 2: We'll be following all these ballot measures come November. Thanks
• 25:49
  Speaker 2: so much, Mary. That's Professor Mary Ziegler of UC Davis
• 25:53
  Speaker 2: Law School coming up next. TikTok does not fare well
• 25:58
  Speaker 2: in the DC Appellate Court. I'm June Gross. When you're
• 26:01
  Speaker 2: listening to Bloomberg, time maybe ticking away for TikTok, and
• 26:06
  Speaker 2: it's more than one hundred and seventy million US users.
• 26:10
  Speaker 2: The Chinese owner of the wildly popular social media app
• 26:15
  Speaker 2: has until January nineteenth to sell the app or face
• 26:19
  Speaker 2: a ban in the US, and it appears the DC
• 26:22
  Speaker 2: Appellate Court is not going to be much help, judging
• 26:25
  Speaker 2: by the grilling TikTok got from a three judge panel
• 26:29
  Speaker 2: which was skeptical that the law banning the video sharing
• 26:32
  Speaker 2: app would violate the company's free speech rights. Joining me
• 26:37
  Speaker 2: is Matthew Shettenholm, Bloomberg Intelligence litigation and government analyst. Matt
• 26:42
  Speaker 2: explain the issue here why TikTok has been under scrutiny
• 26:46
  Speaker 2: for so long.
• 26:47
  Speaker 1: So TikTok fell under scrutiny for two main reasons. One
• 26:52
  Speaker 1: a concern about potential propaganda that with TikTok's parents being
• 26:59
  Speaker 1: low lo caated in China, that there was the potential
• 27:04
  Speaker 1: for China to influence the content that one hundred and
• 27:08
  Speaker 1: seventy million Americans are seeing. And a second concern is
• 27:13
  Speaker 1: with data privacy, that all this information about what one
• 27:18
  Speaker 1: hundred and seventy million Americans are clicking on or even
• 27:22
  Speaker 1: where they're located is potentially again running back to a
• 27:28
  Speaker 1: company with that's located in China, and that potentially raises
• 27:33
  Speaker 1: concerns with China's access to potentially very sensitive data. And
• 27:38
  Speaker 1: so those two things really drove legislators into passing what
• 27:44
  Speaker 1: became law in April.
• 27:46
  Speaker 2: And tell me about that law.
• 27:48
  Speaker 1: Basically, this law says it passed in late April, as
• 27:51
  Speaker 1: I said, and it says it from two hundred and
• 27:53
  Speaker 1: seventy days after that passage, which takes us to January
• 27:57
  Speaker 1: nineteenth of twenty twenty five. On that gate, no company
• 28:03
  Speaker 1: can carry TikTok in an app store or carry it
• 28:08
  Speaker 1: on a server in a way that allows the app
• 28:12
  Speaker 1: to be distributed or updated or maintained in the United States.
• 28:17
  Speaker 1: And if companies continue to carry it in their app
• 28:20
  Speaker 1: stores or to carry it on servers, they would face
• 28:23
  Speaker 1: severe potential liability and penalties and enforcement. And the only
• 28:28
  Speaker 1: path around that is that Congress allowed is for TikTok
• 28:32
  Speaker 1: to divest the company, for the company to be sold
• 28:35
  Speaker 1: to a company that doesn't have a parent located in China.
• 28:39
  Speaker 1: But TikTok has said, look, that is not feasible. We
• 28:43
  Speaker 1: are not able to do a divestiture in two hundred
• 28:46
  Speaker 1: and seventy days technically legally for a number of reasons.
• 28:50
  Speaker 1: So they've effectively told the court, look, that's not happening.
• 28:53
  Speaker 1: And instead of doing that, they've they've brought a First
• 28:56
  Speaker 1: Amendment challenge to try to challenge the court. And that's
• 28:59
  Speaker 1: what what we heard at the DC Circuit on Monday
• 29:02
  Speaker 1: morning was the argument in that case.
• 29:05
  Speaker 2: So The hearing was scheduled for fifty minutes and it
• 29:07
  Speaker 2: ran for about two hours. And what was the main.
• 29:10
  Speaker 1: Issue, certainly the First Amendment. So TikTok threw a number
• 29:14
  Speaker 1: of arguments against this law. Its lead argument was the
• 29:19
  Speaker 1: First Amendment, and that's all the court reached. It's all
• 29:21
  Speaker 1: the court talked about. We never reached the takings clause
• 29:25
  Speaker 1: claims or the Bill of Attainder issues. This is going
• 29:29
  Speaker 1: to be won or lost for TikTok on the First Amendment.
• 29:32
  Speaker 1: And TikTok really made the argument that this is an
• 29:36
  Speaker 1: unprecedented speech restriction in the United States, that this is
• 29:41
  Speaker 1: one of the leading social media apps. One hundred and
• 29:44
  Speaker 1: seventy million Americans use this for communicating for speech every day,
• 29:49
  Speaker 1: and you're forcing the sale of it. And it says
• 29:52
  Speaker 1: if you would force the sale of politico or twitter
• 29:56
  Speaker 1: x because you don't like the owner, because the government
• 29:58
  Speaker 1: doesn't like who's control, and you're going to force a
• 30:01
  Speaker 1: sale of it, they say that's unprecedented for the government
• 30:05
  Speaker 1: to use that level of control and to do it
• 30:08
  Speaker 1: for secret reasons. A lot of the evidence was secret,
• 30:11
  Speaker 1: and so the briefing focused on that issue. The argument
• 30:15
  Speaker 1: focused on the First Amendment issue, but probably not in
• 30:17
  Speaker 1: the ways that TikTok would have liked.
• 30:19
  Speaker 2: Tell us why TikTok didn't fare well.
• 30:22
  Speaker 1: Yeah, I thought it was a very tough day for TikTok.
• 30:26
  Speaker 1: Even though the court explored the First Amendment issue, it
• 30:29
  Speaker 1: didn't do it in the ways that I think TikTok
• 30:32
  Speaker 1: would most like. TikTok really pushed the arguments that this
• 30:36
  Speaker 1: should be subject to strict scrutiny, which is the highest
• 30:40
  Speaker 1: level of First Amendent scrutiny, and it's very tough for
• 30:43
  Speaker 1: the government to win a case that is governed by
• 30:45
  Speaker 1: that standard. I saw little appetite from the three judges
• 30:49
  Speaker 1: on the panel to go to strict scrutiny. They didn't
• 30:52
  Speaker 1: want to go there. Where they wanted to go was
• 30:54
  Speaker 1: intermediate scrutiny, which is an easier test for the government
• 30:58
  Speaker 1: to pass, and so I think that was a concern.
• 31:01
  Speaker 1: One of the judges on the panel, Naomi Rao Trumpt appointee,
• 31:06
  Speaker 1: brought up a nineteen eighty eight case that the government
• 31:09
  Speaker 1: hadn't even cited about the government's ability to shut down
• 31:13
  Speaker 1: an office with ties to a foreign country of concern
• 31:18
  Speaker 1: and said, look, we rejected a First Amendment case in
• 31:21
  Speaker 1: that and similarly, another judge, Douglas Ginsburg, a Reagan appointee
• 31:25
  Speaker 1: on the panel, really expressed sympathy for the government's interest
• 31:30
  Speaker 1: in managing national security threats and foreign affairs. You know,
• 31:34
  Speaker 1: TikTok pushed the point that, look, Congress never made findings
• 31:38
  Speaker 1: about what is wrong with TikTok. They passed this very quickly,
• 31:43
  Speaker 1: and if you look at the law, there are no
• 31:45
  Speaker 1: reports tied to this legislation saying why you needed to
• 31:49
  Speaker 1: take this extreme measure. I thought that might get more
• 31:52
  Speaker 1: traction with these judges, but instead they were much more
• 31:56
  Speaker 1: deferential to Congress, much more concerned about stepping on Congress
• 32:03
  Speaker 1: on a national security matter, something these judges aren't expert on.
• 32:07
  Speaker 1: Neilmi Rao at one point said, look, you're asking us
• 32:10
  Speaker 1: to treat Congress like an agency the way we would
• 32:13
  Speaker 1: review a federal agency, and we don't do that in
• 32:16
  Speaker 1: the same way. And basically, there was a sense that
• 32:19
  Speaker 1: they were going to be much more deferential to Congress's
• 32:22
  Speaker 1: judgments on these national security threats. And so if I
• 32:25
  Speaker 1: was TikTok walking out of that argument, I would be
• 32:28
  Speaker 1: concerned the.
• 32:29
  Speaker 2: Government's lawer said, there are just reams of information that
• 32:32
  Speaker 2: are going back to China. Is the information secret and
• 32:35
  Speaker 2: we haven't seen it, or is there no information that
• 32:39
  Speaker 2: they keep claiming that TikTok is a threat.
• 32:42
  Speaker 1: I think the government is willing to concede that so
• 32:45
  Speaker 1: far they haven't seen direct evidence of China doing what
• 32:50
  Speaker 1: they're most concerned about, China influencing the propaganda, or China
• 32:57
  Speaker 1: diving into this personal data. What the govern government has said, though,
• 33:01
  Speaker 1: is that there is an extreme risk with this setup,
• 33:05
  Speaker 1: with allowing a parent of TikTok to be in China,
• 33:10
  Speaker 1: and that in itself is so inherently risky that it's
• 33:14
  Speaker 1: reasonable for the government to proactively address it and not
• 33:17
  Speaker 1: to shut down TikTok necessarily, but to say that you
• 33:21
  Speaker 1: will be shut down unless you sell the company to
• 33:23
  Speaker 1: someone that doesn't have a parent in China. And we're
• 33:26
  Speaker 1: kind of reading through the lines a little bit because
• 33:29
  Speaker 1: a lot of the briefing material was redacted and confidential.
• 33:35
  Speaker 1: I think dozens of pages in the government's brief, but
• 33:39
  Speaker 1: I do think in other parts that weren't redacted, they
• 33:41
  Speaker 1: did concede that we don't have hard evidence of this happening. Yet,
• 33:45
  Speaker 1: and so I thought TikTok might get a little more
• 33:47
  Speaker 1: traction on the fact that the government's doing a lot
• 33:50
  Speaker 1: of this for secret reasons. And what's really remarkable. Sometimes
• 33:54
  Speaker 1: you'll see cases with redacted information that the public can't see,
• 33:58
  Speaker 1: but at least both sides of the case can see it. Here,
• 34:01
  Speaker 1: even TikTok can't see the evidence against it. The government
• 34:05
  Speaker 1: was only sharing this information with the courts on an
• 34:07
  Speaker 1: ex part day basis, and so that's sort of remarkable
• 34:10
  Speaker 1: in a first anemic case. But if you look through
• 34:12
  Speaker 1: the transcript of yesterday's two hour hearing, that got mentioned
• 34:16
  Speaker 1: hardly at all. And so TikTok, Yeah, TikTok made very
• 34:20
  Speaker 1: little traction about raising concerns about the government using secret
• 34:24
  Speaker 1: evidence for this, and instead, you know, you heard a
• 34:27
  Speaker 1: lot about sympathy to the government in addressing a national
• 34:30
  Speaker 1: security threat. So concerning if your TikTok, I'd think you.
• 34:35
  Speaker 2: Give TikTok just a twenty percent chance of a success
• 34:38
  Speaker 2: at the DC circuit.
• 34:40
  Speaker 4: Yeah.
• 34:40
  Speaker 1: So, I mean, going into this argument, I viewed this
• 34:43
  Speaker 1: as a very close case, and on the briefing, I
• 34:46
  Speaker 1: thought TikTok did a pretty good job of raising concerns
• 34:49
  Speaker 1: that might give these judges pause about allowing such a
• 34:53
  Speaker 1: drastic measure. But TikTok got so little traction with those
• 34:58
  Speaker 1: three judges yesterday. Two of the three the two Republican
• 35:02
  Speaker 1: appointed judges on the panel. You know, I find it
• 35:05
  Speaker 1: very difficult to see them ruling for TikTok. The Obama
• 35:09
  Speaker 1: appointee maybe he was a little more more neutral on
• 35:12
  Speaker 1: the panel, but still, most likely this is going to
• 35:16
  Speaker 1: lead to a decision at the DC Circuit that upholds
• 35:20
  Speaker 1: Congress's law and most likely leaves that January nineteenth deadline
• 35:25
  Speaker 1: for an effective man in place. And so I think
• 35:28
  Speaker 1: I think we're likely to see that decision by early December.
• 35:33
  Speaker 2: TikTok, if it loses, could appeal to the full DC Circuit,
• 35:38
  Speaker 2: which would have more Democratic appointees on it, or could
• 35:43
  Speaker 2: try to go to the Supreme Court. What do you
• 35:45
  Speaker 2: think it's likely to do?
• 35:47
  Speaker 1: That's exactly right. So the problem here is that time
• 35:50
  Speaker 1: is extremely tight. Normally you'd pursue every option you can.
• 35:55
  Speaker 1: And so, okay, let's try from asking the full DC
• 35:58
  Speaker 1: Circuit first and if that fails, and then we'll go
• 36:01
  Speaker 1: to the Supreme Court. But when TikTok has to do
• 36:03
  Speaker 1: all of this by January nineteenth, then it might not
• 36:06
  Speaker 1: see a decision until maybe December. So time could be
• 36:10
  Speaker 1: really short here. And if this decision goes the way
• 36:14
  Speaker 1: I think is most likely at the DC's Circuit with s.
• 36:17
  Speaker 1: Shrievasen he's the chief judge, was the Obama appointee on
• 36:21
  Speaker 1: this panel. If he rules against TikTok, and to Republican
• 36:25
  Speaker 1: appointed judges rule against TikTok, I don't think there's going
• 36:29
  Speaker 1: to be much chance that En Bank the DC Circuit
• 36:32
  Speaker 1: is going to second guest those three judges. And given
• 36:35
  Speaker 1: the shortness of time, I think TikTok says, look, we're
• 36:38
  Speaker 1: not going to win at the DC Circuit. Let's try
• 36:41
  Speaker 1: at the Supreme Court. That's our best bet. And asking
• 36:44
  Speaker 1: the Supreme Court justices this is such an unprecedented First
• 36:48
  Speaker 1: Amendment issue for the government to do this, we should
• 36:52
  Speaker 1: at least ask the Supreme Court to freeze this January
• 36:55
  Speaker 1: nineteenth deadline and take up this case to consider the
• 36:59
  Speaker 1: employ First Amendment issues. And so I think that's what
• 37:02
  Speaker 1: you'll see if TikTok loses in December, is an emergency
• 37:05
  Speaker 1: request to the Supreme Court to hit pause on this,
• 37:09
  Speaker 1: low this down, and let's think about whether the government
• 37:12
  Speaker 1: really satisfied the First Amendment or not, because.
• 37:15
  Speaker 2: It doesn't seem like this Supreme Court would be any
• 37:18
  Speaker 2: more sympathetic than the judges at the DC Circuit.
• 37:21
  Speaker 1: Were I agree with you. And especially one thing that
• 37:24
  Speaker 1: came up at the DC Circuit yesterday was when the
• 37:27
  Speaker 1: Supreme Court on July first decided the Net Choice case,
• 37:31
  Speaker 1: the First Amendment case. There, Justice Barrett put in a
• 37:35
  Speaker 1: sentence in her opinion that said, look, even though look,
• 37:38
  Speaker 1: this opinion gives First Amendment rights to these social media companies,
• 37:41
  Speaker 1: maybe the analysis is different when there are ties to
• 37:45
  Speaker 1: a foreign company. And the judges at the DC Circuit
• 37:49
  Speaker 1: yesterday kind of latched onto that and said, yes, it's
• 37:52
  Speaker 1: different in matters of foreign control. And with the Supreme
• 37:56
  Speaker 1: Court makeup of six Republican appointed judges three Democrat appointed judges,
• 38:02
  Speaker 1: I think it's very likely that a majority of that
• 38:05
  Speaker 1: court is going to agree with this panel for DC Circuit,
• 38:09
  Speaker 1: which also is to Republican appointed judges one Democrat appointed judge.
• 38:14
  Speaker 1: It's going to be a really tough decision to reverse
• 38:17
  Speaker 1: at the Supreme Court. I think TikTok is really up
• 38:20
  Speaker 1: against it in trying to do that. It is possible,
• 38:23
  Speaker 1: I guess that the Supreme Court would say, look, it's
• 38:27
  Speaker 1: at least important, and so this is important enough, we
• 38:29
  Speaker 1: should hear it and slow it down. But TikTok ultimately
• 38:33
  Speaker 1: winning is going to be a really tough sell with
• 38:36
  Speaker 1: the Supreme Court.
• 38:37
  Speaker 2: Great analysis, Matt, not for TikTok, though, Thanks so much.
• 38:41
  Speaker 2: That's Matthew Shettenhelm, Bloomberg Intelligence, Litigation and Government analyst. And
• 38:46
  Speaker 2: that's it for this edition of the Bloomberg Law Show.
• 38:49
  Speaker 2: Remember you can always get the latest legal news by
• 38:51
  Speaker 2: subscribing to the Bloomberg Law Podcast or downloading this show
• 38:55
  Speaker 2: at Bloomberg dot com, slash podcast, slash Law. I'm Drewan
• 38:59
  Speaker 2: Brosso in your listen ink to Boomberg