Latest / Bloomberg Law / Trump Day 1 Orders & Challenge to Anti-Porn Law

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Trump Day 1 Orders & Challenge to Anti-Porn Law · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
0:08
Speaker 2: You know how beautiful the inauguration is. You're down and
0:12
Speaker 2: you're walking up these beautiful stairs to capital, and everything's
0:16
Speaker 2: so beautiful. As I'm walking up, I'll be signing about
0:20
Speaker 2: four or five different documents. I'm not going to wait
0:22
Speaker 2: to get to The.
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Speaker 3: Executive actions are common on day one of a presidency,
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Speaker 3: but Donald Trump is planning an uncommon day one by
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Speaker 3: issuing around one hundred executive orders to cover everything from
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Speaker 3: closing the southern border and ending birthright citizenship to undoing
0:44
Speaker 3: Biden's climate policies and rolling back the rights of transgender Americans.
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Speaker 4: With a stroke of.
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Speaker 5: My pen on day one, We're going to stop the
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Speaker 5: transgender lunacy, and I will sign executive orders to end
1:02
Speaker 5: child sexual mutilation, get transgender out of the military and
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Speaker 5: out of our elementary schools and middle schools.
1:11
Speaker 4: And high school.
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Speaker 3: It will be a first day shock and all campaign.
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Speaker 3: Some of the executive orders may be significant, but others
1:22
Speaker 3: will be merely symbolic, and many will be challenged in
1:26
Speaker 3: court and take months, if not years, of litigation. Joining
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Speaker 3: me is constitutional law expert David super a professor at
1:33
Speaker 3: Georgetown Law, David explain what an executive order is and
1:38
Speaker 3: the power it carries.
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Speaker 1: I'm an executive order is simply a formal directive from
1:45
Speaker 1: the President, as head of the executive Branch, to any
1:50
Speaker 1: or all of his subordinates. It can be something that
1:55
Speaker 1: is called for by an Act of Congress. It can
1:58
Speaker 1: be issued under or the president's constitutional authorities as commander
2:04
Speaker 1: in chief and 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?
2:15
Speaker 4: Yeah.
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Speaker 1: The president can't do anything that he doesn't have the
2:19
Speaker 1: authority to do, either from the Constitution or congrus. So
2:23
Speaker 1: he can't amend or repeal laws. He can't abridge people's
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Speaker 1: First Amendment or do process freedoms. He can't exercise powers
2:34
Speaker 1: that are not his.
2:35
Speaker 3: Do most executive orders require agencies to perform actions.
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Speaker 1: For the most part, yes, because most laws delegate authority
2:45
Speaker 1: to agencies. So an executive order is the President publicly
2:51
Speaker 1: telling one or more agencies how it wants them to
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Speaker 1: use their delegated powers. Very few matters, not none, but
3:01
Speaker 1: very few 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
3:12
Speaker 3: Procedure Act and the rules process, so it can't be
3:15
Speaker 3: done immediately.
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Speaker 1: No, and the agency can't do more than the law
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Speaker 1: allows it to do. So the president can direct the
3:25
Speaker 1: agency to do six things, but if the agency only
3:29
Speaker 1: has legal authority to do four of them, then that's
3:32
Speaker 1: all that's ever going to happen.
3:34
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
3:42
Speaker 3: that into context, so far as of Monday, President Biden
3:46
Speaker 3: has issued one hundred and fifty five executive orders over
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Speaker 3: four years. Do you think that's to create shock and awe?
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Speaker 1: Well, I think that's the idea. There've been a number
3:57
Speaker 1: of statements from the President and from members of his
4:01
Speaker 1: team suggesting that they intend to have a shock in
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Speaker 1: law entrance.
4:07
Speaker 3: Immigration enforcement is and always has been Trump's number one priority.
4:13
Speaker 3: He has said that on day one he's going to
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Speaker 3: close the US southern border, reinstate his travel bands, and
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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 1: He can do things that sound like that. And if
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Speaker 1: the goal of this is publicity, then perhaps he can
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Speaker 1: get the publicity he is seeking. But there's very extensive
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Speaker 1: laws about the ability to limit travel, about refugees' ability
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Speaker 1: to seek to come to this country, and a number
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Speaker 1: of the things in that area that have been discussed
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Speaker 1: publicly probably illegal.
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Speaker 3: The Supreme Court did uphold his Muslim travel ban, but
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Speaker 3: circumstances have changed since then. So is there any guarantee
5:10
Speaker 3: the Supreme Court would uphold another travel ban.
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Speaker 1: There's no guarantee. That opinion was fairly deferential to the president,
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Speaker 1: but it didn't suggest that the president had a complete
5:22
Speaker 1: blank check. So if the president justifies a travel ban
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Speaker 1: on factually sound and legally premiscipal grounds, it'll be upheld.
5:33
Speaker 1: But remember, the travel ban that got to the Supreme
5:36
Speaker 1: Court was not the first one or even the second
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Speaker 1: one that he issued. His first few travel bans were
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Speaker 1: so blatantly unlawful that they lost in lower courts, and
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Speaker 1: his Justice Department sensibly concluded there was no point in appealing.
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Speaker 3: Are courts generally reluctant to stay or to overturn and
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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 1: I don't know that that's generally true. Executive orders often
6:09
Speaker 1: don't do anything that could be challenged in court. An
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Speaker 1: executive order might, for example, say that agencies should take
6:18
Speaker 1: the interests of veterans into account in implementing various authorities
6:23
Speaker 1: under their control. That's not challengeable because it doesn't to
6:27
Speaker 1: adversely affect anybody. If the President tries to take authority
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Speaker 1: that isn't his, courts feel a need to intervene to
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Speaker 1: 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
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Speaker 3: end birthright citizenship on day one. That's something that surely
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Speaker 3: will be challenged.
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Speaker 1: Well, that's an example of an executive order that has
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Speaker 1: no legal authority taking a power that isn't his. That's
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Speaker 1: resolved by Section one of the fourteenth Amendment to the Constitution.
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Speaker 1: So neither the President nor Congress can change that. We
7:15
Speaker 1: could only change that if we amended the constitution.
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Speaker 3: He said, with the stroke of my pen on day one,
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Speaker 3: we're going to stop the transgender lunacy, that he'll sign
7:28
Speaker 3: executive orders to get transgender people out of the military.
7:32
Speaker 3: And out of our elementary schools and middle schools and
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Speaker 3: high schools well. He said, the official policy of the
7:39
Speaker 3: US government will be that there are only two genders,
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Speaker 3: male and female. What can he do to restrict transgender
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Speaker 3: rights as he wants to.
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Speaker 1: The most significant thing that he can do, and something
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Speaker 1: he's already been doing, is feeding the flaims of bigotry,
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Speaker 1: of hostility, and hatred. I don't think there's any question
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Speaker 1: that a significant number of transgender children will be driven
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Speaker 1: into depression and some to suicide as a result of
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Speaker 1: this hateful rhetoric. That's clearly within his power. Controlling what
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Speaker 1: happens in schools that are run by state and local
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Speaker 1: governments is not within his power. What about the military,
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Speaker 1: The president has considerable authority as commander in chief to
8:26
Speaker 1: take steps to make the military more effective for the country.
8:32
Speaker 1: Whether the courts would consider purging people who are serving
8:36
Speaker 1: in the military honorably and have shown loyalty and proficiency
8:41
Speaker 1: is another question.
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Speaker 3: Now, he's also going to do something that is reminiscent
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Speaker 3: of what he did in his last term. He said
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Speaker 3: he's going to sign an executive order directing every federal
8:52
Speaker 3: agency to immediately remove every single burdensome regulation driving up
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Speaker 3: the cost of goods. And he said that for every
9:02
Speaker 3: regulation that a federal agency wants to put into effect,
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Speaker 3: it has to eliminate ten regulations.
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Speaker 1: Well, it makes for good headlines, but it's pretty overtly illegal.
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Speaker 1: Each of the statutes that federal agencies implement have their
9:18
Speaker 1: own legal criteria, and an agency should issue the regulations
9:24
Speaker 1: the statute directs it to issue, and should not issue
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Speaker 1: regulations the statutes don't authorize. It is not a legal
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Speaker 1: or rational basis for deregulating that you needed to regulate
9:37
Speaker 1: something else. He can't do that, And if an agency
9:41
Speaker 1: tries to do repeals of the kind he's talking about,
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Speaker 1: those will surely be challenged and struck down in court.
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Speaker 1: In addition, it's very hard to tell when a regulation
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Speaker 1: is creating a burden and when it is removing a burden.
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Speaker 1: If you allow the airlines to change their schedules at
10:03
Speaker 1: the last moment to lose baggage, you can say you're
10:07
Speaker 1: reducing burdens on them, but you're increasing burdens on me
10:11
Speaker 1: as a traveler.
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Speaker 3: I mean, ken an agency just say we're getting rid
10:15
Speaker 3: of that regulation, or do they have to put something
10:17
Speaker 3: else in its place.
10:19
Speaker 1: It depends entirely on what the underlying statute provides. If
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Speaker 1: the statute says that you will regulate chemicals that are
10:30
Speaker 1: determined to be hazardous to workers, then they can't simply
10:35
Speaker 1: repeal a regulation with such a chemical unless they can
10:39
Speaker 1: show scientific evidence that that chemical isn't hazardous to workers.
10:44
Speaker 1: It's not up to their choice whether to regulate a
10:47
Speaker 1: hazardous chemical once that's been identified under the statute, so
10:52
Speaker 1: they could perhaps change the regulation, but even there they'd
10:56
Speaker 1: need a scientific basis.
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Speaker 3: So out of the seventy seven major rules in his
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Speaker 3: first administration that were challenged, Trump won thirty one point
11:05
Speaker 3: two percent of the time, according to an analysis by
11:09
Speaker 3: NYU Law School's Institute for Policy Integrity. What difference, if any,
11:15
Speaker 3: does it make that in his first term, the Chevron
11:19
Speaker 3: doctrine was in place, But in his second term there
11:22
Speaker 3: is no Chevron doctrine, so that deference to agencies with
11:26
Speaker 3: ambiguous rules is gone. Would that make any difference?
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Speaker 1: That'll mean he'll lose more. The Chevron Doctrine was an
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Speaker 1: enormous help to President Trump. In his first term, a
11:38
Speaker 1: number of very questionable legal rulings were sustained on that basis.
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Speaker 1: He doesn't have that to hide behind anymore, and if
11:46
Speaker 1: his new rules are as badly resented as the ones
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Speaker 1: in his first term, he'll be very lucky to get
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Speaker 1: even close to thirty one percent success.
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Speaker 3: He has talked about day one a lot in the
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Speaker 3: last few months, and he's said, look, I can undo
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Speaker 3: almost everything Biden did through executive order, and on day
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Speaker 3: one much of that will be undone. A president can
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Speaker 3: revoke the executive orders of his predecessor, right, although I
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Speaker 3: don't know how can revoke them all in one fail swoop.
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Speaker 1: The president generally can revoke the predecessor's executive orders, and
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Speaker 1: he can sign a new executive order with a list
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Speaker 1: of fire executive orders that are ascended. If he tries
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Speaker 1: that with too broad a brush, he'll probably end up
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Speaker 1: doing some things that are embarrassing, repealing recognitions of this
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Speaker 1: or that agency or state or individual for heroic or
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Speaker 1: public minded service. But he can repeal just about any
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Speaker 1: executive order he wants to, unless there is some statute
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Speaker 1: that requires that executive order to stay in place, which
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Speaker 1: they're rarely is.
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Speaker 3: We assume he's going to rely on executive orders a
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Speaker 3: lot has there been another president that relied on executive
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Speaker 3: orders so much?
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Speaker 1: No, there have been presidents who've issued very important executive orders.
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Speaker 1: Certainly President Reagan did, President Clinton did, and they did
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Speaker 1: change the government with those, but they were targeted at
13:24
Speaker 1: particular things that were within their authority and particular things
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Speaker 1: that the government could actually do.
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Speaker 3: Congress could always pass a law that refutes the executive order.
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Speaker 3: But with the Congress the way it is, both houses
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Speaker 3: controlled by Republicans, does it seem like there's going to
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Speaker 3: be any sort of restraint on Trump.
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Speaker 1: Well, there's a great deal of restraint from laws that
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Speaker 1: are already on the books in areas where he has
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Speaker 1: a great deal of discretion. I agree that this Congress
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Speaker 1: is unlikely to narrow that, but in many he does
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Speaker 1: not have broad discretion, and we don't need new laws
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Speaker 1: to impose restraints because we have existing ones.
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Speaker 3: Do you think his aides learned by their experience with
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Speaker 3: executive orders the first time around?
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Speaker 1: I don't know. There are certainly some people that are
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Speaker 1: coming back. Mister Vote is going to resume his seat
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Speaker 1: as director of OMB if he's confirmed by the Senate.
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Speaker 1: But a great many of them are different, and I
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Speaker 1: do see evidence of repeating mistakes that were made in
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Speaker 1: the first Trump administration.
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Speaker 3: So I see a lot of litigation ahead in the
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Speaker 3: next four years. Thanks so much, David. That's Professor David
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Speaker 3: Super of Georgetown Law coming up next on the Bloomberg
14:45
Speaker 3: Law Show. Supreme Court Justice is grappled today with a
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Speaker 3: first amendment challenge to a Texas law requiring age verification
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Speaker 3: to access porn sites.
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Speaker 6: Sable, of course, was thirty five years ago. In that period,
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Speaker 6: the technological access to pornography obviously has exploded, right. I mean,
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Speaker 6: it's very difficult for fifteen year olds whatever to get
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Speaker 6: access to the type of things that is available with
15:15
Speaker 6: the push of a button today. And the nature of
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Speaker 6: the pornography I think has also changed in those thirty
15:25
Speaker 6: five years.
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Speaker 3: Chief Justice John Roberts said the availability of pornography has
15:31
Speaker 3: exploded with technology. Since the Court lasts grapple with restrictions
15:36
Speaker 3: on obscene material, and it may require the Justices to
15:40
Speaker 3: rethink the standard of scrutiny. The Court is deciding a
15:44
Speaker 3: first amendment challenge to a Texas law that requires porn
15:49
Speaker 3: sites to verify the age of users. An industry trade
15:53
Speaker 3: group contends the law violates the privacy rights of adults,
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Speaker 3: and the Fifth Circuit Court of Appeals should have looked
16:01
Speaker 3: at the law under a strict scrutiny standard that would
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Speaker 3: require Texas to have a compelling interest it can achieve
16:08
Speaker 3: in the least restrictive way. However, many of the justices
16:12
Speaker 3: seem skeptical that other less restrictive alternatives like content filtering,
16:18
Speaker 3: would protect kids. Justice Amy Cony Barrett, who has seven children,
16:23
Speaker 3: said she had first hand experience.
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Speaker 7: I mean, kids can get online porn through gaming systems, tablets, phones, computers.
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Speaker 7: Let me just say that content filtering for all those
16:35
Speaker 7: different devices, I can say from personal experience, is difficult
16:38
Speaker 7: to keep up with. So and I think that the
16:41
Speaker 7: explosion of addiction in to online porn has shown that
16:45
Speaker 7: content filtering isn't working.
16:47
Speaker 3: And there's always the problem of parents and technology, as
16:51
Speaker 3: Justice Samuel A. Leito pointed out to the attorney for
16:55
Speaker 3: the industry trade group Derek Schaffer.
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Speaker 1: Mister Schaffer, you know a lot of parents who are
17:02
Speaker 1: more tech savvy than their fifteen year old children. Oh,
17:06
Speaker 1: Justice Leto, it's a fair question, and I don't know that.
17:09
Speaker 1: I think kids may be ahead of parents, but that's
17:11
Speaker 1: a problem with this law. It's not solving for the fact.
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Speaker 4: Now it's a problem with filtering.
17:15
Speaker 3: Isn't it joining me? Is First Amendment expert Eugene Volk,
17:19
Speaker 3: a professor at UCLA Law School, Eugene Justice Sonia so
17:23
Speaker 3: to mayor, So, the issue is the level of scrutiny
17:26
Speaker 3: to be applied to the law. Is that the real
17:29
Speaker 3: issue in the case.
17:31
Speaker 4: It is an issue. But if in some respects a
17:34
Speaker 4: matter of legal labeling, there's a deeper issue behind. If
17:38
Speaker 4: you just step back, we can think of two kinds
17:41
Speaker 4: of speech. One is speech that holds within a First
17:45
Speaker 4: Amendment exception. Could be true threats of criminal conduct, could
17:50
Speaker 4: be incitement to christ, could be certain kinds of libel.
17:53
Speaker 4: It could be obscenity in the sense of hardcore pornography
17:57
Speaker 4: that is illegal for everybody. That kind of speech hits
18:01
Speaker 4: within a First Tomment exception. It's constitutionally unprotected once you
18:06
Speaker 4: apply the right test to determine whether it's fits into
18:09
Speaker 4: one of those categories. At that point, restrictions on that
18:13
Speaker 4: speech I oversimplify here, though, might be seen as justifiable
18:16
Speaker 4: so long as there's a so called rational basis for them,
18:19
Speaker 4: which is to say, they'll be upheld again once the
18:22
Speaker 4: court concludes the speech is unprotected. So if there's a
18:25
Speaker 4: law that in truth threats of illegal conduct the government
18:28
Speaker 4: doesn't happen, then show that it's narrowly tailored to compelling interest.
18:33
Speaker 4: There is an alternative to the law.
18:35
Speaker 2: What have you.
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Speaker 4: The law is just constitutional wants it's funds to be
18:38
Speaker 4: limited to the truth threats. Second category of speech is
18:42
Speaker 4: all sorts of other speech, political advocacies, scientific speech, a
18:47
Speaker 4: discussion about personal matters that is protected. If the government
18:50
Speaker 4: wants to restrict that based on its content, it really
18:53
Speaker 4: does have to show there's a compelling government interest. The
18:57
Speaker 4: law is the least restrictive way of sin that interest.
19:01
Speaker 4: It's a very hard.
19:01
Speaker 1: Stenter the show.
19:03
Speaker 4: But there is this third category that the Court has
19:06
Speaker 4: recognized over the decades, and that is speech that is
19:11
Speaker 4: unprotected for minors, so called harmful to minors or obscenis
19:16
Speaker 4: to minors. Basically pornographic for minors or let's say unduly
19:21
Speaker 4: pornographic therefore unacceptable to be distributed to minors, but at
19:26
Speaker 4: the same time is constitutionally protected for adults. A lot
19:30
Speaker 4: of pornography is that way. It's basically protected for adults.
19:35
Speaker 4: But if you're trying to distribute it to minors, maybe
19:37
Speaker 4: even seventeen year old miners, but certainly younger miners, it
19:42
Speaker 4: is constitutionally unprotected. The question is what happens when there
19:46
Speaker 4: are laws that limit speech within this kind of weird
19:51
Speaker 4: intermediate category and at the same time those laws pretty
19:55
Speaker 4: much invariably also burden speech that is a at adults
20:00
Speaker 4: or there will be received by adults, because there needs
20:03
Speaker 4: to be a way of sorting the miners for adults,
20:05
Speaker 4: and those ways might interfere in some measure with adults.
20:09
Speaker 4: So the question is how you deal with that. And
20:12
Speaker 4: the court talked about various formulations you might think of
20:15
Speaker 4: as a rational basis test for those kinds of restrictions,
20:18
Speaker 4: or a strict scrutiny test, or some justice suggested kind
20:22
Speaker 4: of a and the State of Texas suggests kind of
20:25
Speaker 4: a burden based test, asking how much the law actually
20:30
Speaker 4: does interfere with speech to adults. So those are the
20:33
Speaker 4: legal formulations for are inmplating. The core question, though, is
20:37
Speaker 4: how do you reconcile the permissibility of trying to shield
20:42
Speaker 4: miners with the fact that any such restriction will impose
20:45
Speaker 4: some burdens on adults and h screening will in particular
20:48
Speaker 4: interfere in some measure with adults privacy because it might
20:52
Speaker 4: require them to identify themselves in various ways. Those are
20:56
Speaker 4: the questions that the corp was really dealing with them.
21:00
Speaker 3: The Fifth Circuit upheld the Texas law by relying on
21:04
Speaker 3: a nineteen sixties case about a New York bookseller verifying
21:08
Speaker 3: the age of customers before selling adult material. Was that
21:13
Speaker 3: the case that they should have been relying on.
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Speaker 4: So the problem is that the court has two precedents
21:20
Speaker 4: that are pretty close to on point and the point
21:23
Speaker 4: in pretty different directions. So in nineteen sixty eight, the
21:28
Speaker 4: Supreme Court upheld in a case called Ginenberg versus New York,
21:31
Speaker 4: upheld a law that basically said, it's the illegal to
21:35
Speaker 4: sell certain pornographic materials that are protected for adults. It's
21:39
Speaker 4: illegal to sell them to minors, and illegal to do
21:43
Speaker 4: that if you know the person owned as a minor
21:45
Speaker 4: or reasonably should know the person as a minor, And
21:48
Speaker 4: one way of determining the law that whether he's going
21:51
Speaker 4: as a minor is by carting the person by asking
21:55
Speaker 4: to see an ID. And on the other hand, if
21:57
Speaker 4: somebody comes in and they looked kind of borderline and
22:00
Speaker 4: you don't card them, well, then you could be criminally
22:02
Speaker 4: punished because you reasonably should have known that the person
22:05
Speaker 4: was a miners. So people who look borderline, the law
22:09
Speaker 4: would basically require them to show an ID.
22:12
Speaker 1: As a practical man.
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Speaker 4: But then in ashcarf. The ACLU two, a two thousand
22:17
Speaker 4: and four case, the Supreme Court struck down a law
22:21
Speaker 4: that aimed at shielding miners on the Internet from this
22:25
Speaker 4: kind of harmful to minors of seen as to minors
22:28
Speaker 4: of material, and it said, well, on the Internet, there
22:31
Speaker 4: are other alternatives that you could use that avoid the
22:34
Speaker 4: burden on adults. For example filtering, so having stopped or
22:39
Speaker 4: running on the computer that filters out certain pronographic websites
22:44
Speaker 4: in the discretion of the computer's owner, who presumably would
22:47
Speaker 4: be the parent. So those precedents point in opposite directions. Now,
22:52
Speaker 4: in some sense, and probably in a substantial sense, Ashcart
22:55
Speaker 4: the ACLU two seems more on points because it is
22:58
Speaker 4: actually factually very similar to also involved Internet speech. On
23:02
Speaker 4: the other hand, the court there was really quite tentative
23:04
Speaker 4: and it said, well, a lot depends on fast changing technology.
23:09
Speaker 4: Justice Brier had a distending opinion where he said, look,
23:13
Speaker 4: filtering isn't really that effective, and the government should be
23:17
Speaker 4: able to provide extra protection beyond what is provided by filtering.
23:22
Speaker 4: And a lot of justices of today's arguments were pretty
23:25
Speaker 4: skeptical about filtering. Their view was that it's like after
23:29
Speaker 4: twenty extra years of experience, in twenty years extra years
23:32
Speaker 4: of technological development. Their view was, you know, filtering when
23:36
Speaker 4: every child has a smartphone and ex friends who have
23:39
Speaker 4: smartphones and such, just isn't going to do much. So
23:43
Speaker 4: that's why some of the justices at least seemed a
23:46
Speaker 4: lot more open to applying, to applying Giinsburg and suggesting that, look,
23:51
Speaker 4: this is just the online analogue of parting people as
23:56
Speaker 4: was used with porn stores back of the day. I
23:58
Speaker 4: suppose porn stores to use them, how if their business
24:02
Speaker 4: facing competition from the internet.
24:04
Speaker 3: Justice score such at one point asked whether they should
24:08
Speaker 3: try to keep the same principles for online sites as
24:12
Speaker 3: for brick and mortar stores.
24:16
Speaker 4: That's right, that's right, and this is of course a
24:19
Speaker 4: big part of the state's argument. Look, it's okay to
24:22
Speaker 4: require ID at bricks and mortar stores. The First Amendment
24:27
Speaker 4: applies regardless of the medium generally speaking. On the other hand,
24:32
Speaker 4: the challengers argument is twofold. First of all, they say
24:36
Speaker 4: what should happen is the same test should be applied
24:38
Speaker 4: to both. And they say the tests should be strict
24:41
Speaker 4: scrutiny because of the burden that the law imposes on
24:44
Speaker 4: adult Now, the test may play out differently for different
24:48
Speaker 4: kinds of stores. In the bricks and mortar world, there's
24:51
Speaker 4: no filtering, right, parents can't put glasses on their children
24:55
Speaker 4: that keeps them from being porn in the bricks and
24:58
Speaker 4: mortar stores. But on the Internet there is still print.
25:01
Speaker 4: So a law that may be the least restrictive alternative
25:04
Speaker 4: requiring krding, maybe the least restrict of alternative is a
25:07
Speaker 4: practical matter for bookstores and movie theaters might not be
25:11
Speaker 4: the least restrict of alternative on the Internet. The other
25:14
Speaker 4: thing that the challengers say is that on the Internet,
25:19
Speaker 4: checking ID is actually more burdensome on adults because we
25:25
Speaker 4: know on the Internet you put in some information, potentially
25:28
Speaker 4: it's now available, indefinitely distributable, indefinitely hackable, and as a result,
25:35
Speaker 4: people are going to be much more worried about giving
25:38
Speaker 4: their identifying information in a way that ties them to
25:41
Speaker 4: internet porn than in the old days, where look, you
25:44
Speaker 4: show the ide, nobody's going to write down your name,
25:48
Speaker 4: or your driver's license, member or what have you. Most
25:52
Speaker 4: you might worry that the bookstore clerk is going to
25:55
Speaker 4: remember and gossip to someone about it, but there will
25:58
Speaker 4: be substantial professional reasons for so. The argument that these
26:03
Speaker 4: challengers are making is, yes, let's apply the same standards.
26:07
Speaker 4: It's just those standards end up playing out differently as
26:10
Speaker 4: the different technologies because the facts are different to the
26:13
Speaker 4: different technologies.
26:14
Speaker 3: Coming up next on the Bloomberg Law Show, I'll continue
26:17
Speaker 3: this conversation with Professor Eugene of UCLA Law School. Does
26:21
Speaker 3: the court look like it might send the case back
26:24
Speaker 3: to the Fifth Circuit? And what about the other eighteen
26:27
Speaker 3: states that have passed age verification laws since the beginning
26:31
Speaker 3: of twenty twenty three. Texas is one of nineteen states
26:35
Speaker 3: with laws aimed at blocking young children and teenagers from
26:40
Speaker 3: viewing pornography online by requiring age verification. I've been talking
26:45
Speaker 3: to Professor Eugene Volok of UCLA Law School. Did it
26:49
Speaker 3: seem to you that most of the justices were leaning
26:53
Speaker 3: toward the rational basis test rather than strict scrutiny.
26:58
Speaker 4: Well, so I say that I think quite a few
27:01
Speaker 4: of the justices were open to strict scrutiny in part
27:05
Speaker 4: because Ashbrot the ACLU two did apply that. And then
27:09
Speaker 4: there are other cases not quite a square of the
27:13
Speaker 4: out point, but dealing with technologically distributed pornography and electronically
27:18
Speaker 4: distributed pornography, which also applied to strict scrutiny. The real
27:21
Speaker 4: question is what does that end up meaning? Because even
27:24
Speaker 4: the challenger said, well, in this situation, some laws, some
27:28
Speaker 4: regulations might pass strict screwed. It's just that the particular
27:31
Speaker 4: Texas law doesn't, partly for technical reasons having to do
27:34
Speaker 4: the law, and partly because filtering is the less restrictive
27:39
Speaker 4: of one thing. For example, that the challenger said, it's
27:43
Speaker 4: filtering is actually in some respects more effective because filtering
27:47
Speaker 4: can deal with foreign point sites. Was the Texas law
27:51
Speaker 4: would have no effect on foreign porn sites if the
27:54
Speaker 4: foreign company has no access in Texas and olympolaes in Texas.
27:57
Speaker 4: So the challengers say this particular though would be struck down.
28:01
Speaker 4: I think majority of the court would say at least
28:04
Speaker 4: certain laws should be upheld. Majority of the court also
28:08
Speaker 4: seem to be open to some kind of online age verification.
28:12
Speaker 4: So I think their view was states probably have the
28:16
Speaker 4: authority to require some kinds of age verification as a
28:20
Speaker 4: backstop to parent level filtering and device level filtering. That
28:25
Speaker 4: they could try to wear belt and suspenders in this
28:28
Speaker 4: kind of situation in order to provide more effectiveness of
28:32
Speaker 4: shielding biners, but maybe not this particular law. Maybe a
28:38
Speaker 4: law would have to provide more privately protective age verification options.
28:42
Speaker 4: For example. There's also sounded like some sympathy amongst some
28:47
Speaker 4: justices to kind of punt a little bit to say
28:49
Speaker 4: the right standard districts could me, and we're going to
28:52
Speaker 4: send it back to the Fifth Circuit, to the Federal
28:55
Speaker 4: appellate Court. We're that uphels the law to reconsider the
28:59
Speaker 4: issue and to see whether the district court was right
29:02
Speaker 4: in saying that, well, the law failed strict scrutiny, or
29:06
Speaker 4: maybe this di Circus might say no, the law actually
29:09
Speaker 4: passes strict scrutiny, or do something in between. So that
29:13
Speaker 4: would only require the court to choose the strict scrutiny
29:16
Speaker 4: approach versus the rational basis approach and then leave application
29:21
Speaker 4: of the standard to lower courts. Justices sometimes like to
29:25
Speaker 4: do that, especially when the case looks really complicated and
29:28
Speaker 4: really factly as well.
29:30
Speaker 3: So you think that it's most likely that they're going
29:33
Speaker 3: to remand this to the Fifth Circuit.
29:37
Speaker 4: Oh, I never make predictions about the future, and especially
29:41
Speaker 4: about the future on the court. Sometimes I make predictions.
29:44
Speaker 4: But here the argument, I don't think kind of gave
29:48
Speaker 4: a clear answer as a bad question. Some justices were
29:52
Speaker 4: open to that. You know, if I had to bet,
29:56
Speaker 4: I would probably say that they would say strict scrutiny applies.
30:00
Speaker 4: But whether they would just say that and leave it
30:03
Speaker 4: entirely to the Fifth Circuit of provide more guidance to
30:06
Speaker 4: the Fifth Circuit, that is a harder question.
30:09
Speaker 3: And the Fifth Circuit applied rational basis.
30:13
Speaker 4: So applied rational basis. But in practice, here's what it means.
30:16
Speaker 4: It's said one thought. We see that the law targets
30:20
Speaker 4: only obscenis to minors materials and is targeted as shielding
30:26
Speaker 4: material for miners. At that point, the state has very
30:30
Speaker 4: broad authorities to decide how to shield miners. It doesn't
30:33
Speaker 4: have to show that it's using the least restrictive means
30:36
Speaker 4: doesn't have to worry too much about burden non adults.
30:40
Speaker 4: It's okay. So it's not like rational basis in the
30:42
Speaker 4: sense any speech restriction goes, or any speech restriction aimed
30:46
Speaker 4: that sexually the material goes. The state has to limit
30:50
Speaker 4: itself to this material that is harmful to minors or
30:53
Speaker 4: obscenis to minors. But once it limits itself to that,
30:57
Speaker 4: then the Fifth Circuits said, there's no reason of the
31:01
Speaker 4: ex particularly demanding about looking at the particular means that
31:07
Speaker 4: the state is using in order to enforce that ginsbergby
31:11
Speaker 4: New York obscenist to my understand, so it looks to
31:15
Speaker 4: me like probably most justices are going to say, no,
31:18
Speaker 4: that's not the standard we've used for the Internet in
31:21
Speaker 4: cases like Ashcok the acteal New too. Well, whether they
31:24
Speaker 4: will say much more than that will say much more
31:27
Speaker 4: about what it takes to actually uphold the law under
31:30
Speaker 4: strict scrutiny. That is the harder, harder thing to predict.
31:34
Speaker 3: Texas is one of nineteen states that have these age
31:38
Speaker 3: verification laws. So how would this apply to the other
31:42
Speaker 3: states or would it be fact based?
31:46
Speaker 4: Well, it would be both. If the court says, well,
31:49
Speaker 4: the right standard is, even if you're aiming at shielding children,
31:53
Speaker 4: you've got to show that this is the means that
31:56
Speaker 4: is least restrictive of adult access. That strict scrutiny standard
32:00
Speaker 4: fly to all stacks. On the other end of the
32:02
Speaker 4: court says nope, once you're shielding children at least unless
32:06
Speaker 4: the burden and adults is extraordinarily.
32:08
Speaker 1: High, well than in that case, they're going uphold it.
32:11
Speaker 1: That too would apply to other sticks. On the other hand,
32:14
Speaker 1: are particular features of this particular law. So for example,
32:17
Speaker 1: this law, the state says, well, we are protecting privacy
32:22
Speaker 1: and diminishing the chilling effect on adults by essentially for
32:26
Speaker 1: visiting age verification or sites to do age verification from.
32:30
Speaker 4: Retaining the data. But the challengers say nothing in the
32:34
Speaker 4: law says that you can't give away the data or
32:38
Speaker 4: sell the data. So long as you don't retain that
32:40
Speaker 4: you can sell it to someone else. Well, that's a
32:44
Speaker 4: feature that I don't know how many AVAIL states have,
32:47
Speaker 4: but I imagine some of them don't have this feature. So
32:50
Speaker 4: the court focuses on that and says, well, that makes
32:52
Speaker 4: this law constitutional because either sales trips food new or
32:56
Speaker 4: because it's a too grave a burden on adult access. Well,
33:00
Speaker 4: that might have very little event on other state laws
33:03
Speaker 4: that don't have this peculiar feature.
33:05
Speaker 3: When they were discussing less restrictive alternatives besides content filtering, which,
33:11
Speaker 3: as you mentioned a lot of the justices I think
33:14
Speaker 3: Amy Cony Barrett said from our own experience, it doesn't work.
33:18
Speaker 3: What other ways are there to do this? Are there
33:21
Speaker 3: other technical ways that the justices might not be familiar.
33:26
Speaker 4: With, So I'm not sure how unfamiliar they are with them,
33:30
Speaker 4: but here are a few that that came up. What
33:34
Speaker 4: is the possibility of requiring age verification but using tools
33:40
Speaker 4: that are especially privacy protective. So the possibility, for example,
33:45
Speaker 4: of using some sort of biometric evaluations to kind of
33:49
Speaker 4: look at the person's face, and then without keeping that data,
33:53
Speaker 4: it could just say well, this person looks old or
33:56
Speaker 4: looks old enough. Of course, there there'll be some people
33:59
Speaker 4: who are borderlined, but at least for most people, it
34:02
Speaker 4: would provide less of a burden on privacy than, for example,
34:05
Speaker 4: requiring someone to show a government ID, or there's talk
34:08
Speaker 4: of possibly looking in people's hands altho, in the question
34:11
Speaker 4: is how do you avoid people thinking that so there
34:14
Speaker 4: parently are sites that at least build themselves as providing
34:19
Speaker 4: really secure and privacy protective age verification, and one question
34:23
Speaker 4: was whether using those sites would comply with Texas law.
34:27
Speaker 4: Maybe Texas law doesn't allow those sites to be used,
34:30
Speaker 4: but maybe less restrictive law would. Another argument that the
34:34
Speaker 4: challenger said is well Texas could require that devices sold
34:39
Speaker 4: in Texas have built in filtering as an option to
34:43
Speaker 4: be sure as an option to be used by the parents,
34:46
Speaker 4: So all the parents would have to do for free.
34:48
Speaker 4: They wouldn't have to configure some new software downloaded by
34:52
Speaker 4: its figuring how to operate. All that have to do
34:54
Speaker 4: is that have to select the parental control options. So
34:57
Speaker 4: at that point filtering would be turned on and then
35:00
Speaker 4: they could tune it if they wanted to their preferences.
35:03
Speaker 4: That the challengers said would make for a much lesser
35:07
Speaker 4: burden on adults, because if an adult wants to act
35:10
Speaker 4: the form that they could just buy it or have
35:12
Speaker 4: their device which is set up without the filtering, whereas
35:16
Speaker 4: if a parent wants to shield the child, then the
35:18
Speaker 4: parent can just set the right setting. On the other hand,
35:22
Speaker 4: some justices might be skeptical about that because that might
35:26
Speaker 4: be seen as less effective because it doesn't deal with
35:30
Speaker 4: legacy device. There's lots of computers and phones people as
35:33
Speaker 4: that that would have been before the date before such
35:35
Speaker 4: a mandate. Also doesn't deal with people accessing things on
35:39
Speaker 4: their friends the computers in the line. So those are
35:41
Speaker 4: the kinds of things that I think the justices might
35:44
Speaker 4: very well want to leave to lower courts to decide,
35:48
Speaker 4: not because it's technologically so sophisticated, but just because there's
35:52
Speaker 4: going to be a lot of factual dispute there and
35:56
Speaker 4: often it may make sense for lower courts to look
35:58
Speaker 4: at that more closely.
36:00
Speaker 3: It's a pleasure to have you on, Eugene, thanks so much.
36:02
Speaker 3: That's Professor Eugene Vollik of UCLA Law School. And that's
36:07
Speaker 3: it for this edition of the Bloomberg Law Show. Remember
36:10
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