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Conversion Therapy Ban & Comey Pleads Not Guilty · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
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Speaker 2: Former FBI Director James Comy pleaded not guilty today to
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Speaker 2: charge that he lied to lawmakers and obstructed a congressional proceeding.
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Speaker 2: It sets up a trial for early next year that
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Speaker 2: will delve into the federal prosecution of one of President
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Speaker 2: Donald Trump's biggest perceived enemies. Comy's attorney, Patrick Fitzgerald, a
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Speaker 2: former US Attorney for the Northern District of Illinois, entered
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Speaker 2: the plea of not guilty and said it was the
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Speaker 2: honor of my life to represent mister Komy in this matter.
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Speaker 2: It wasn't surprising that Fitzgerald said Komy would be asking
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Speaker 2: for the case to be dismissed, but there were some
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Speaker 2: other surprises during the less than half hour hearing. Joining
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Speaker 2: me is Bloomberg Legal reporter Chris Strom, who was in
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Speaker 2: the courtroom. Chris So, the defense attorney sort of outlined
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Speaker 2: and the grounds they would use to try to dismiss
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Speaker 2: the case.
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Speaker 1: His attorney is Patrick Fitzgerald, who is a very well known,
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Speaker 1: very respected lawyer, former US attorney for Chicago, and he
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Speaker 1: made three main points that they are going to challenge
1:20
Speaker 1: that the case against Komi represents a vindictive prosecution and
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Speaker 1: a selective prosecution, and that the appointment of the interim
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Speaker 1: US attorney who brought the charge was unlawful. And so
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Speaker 1: they are going to move through those phases of challenges
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Speaker 1: and if they all fail, then they will go to
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Speaker 1: a speedy trial.
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Speaker 2: Why does he say that the appointment was unlawful. I
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Speaker 2: mean it was one of Trump's former personal attorneys, an
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Speaker 2: insurance lawyer with no prosecutoral experience. But I mean, what's
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Speaker 2: the objection.
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Speaker 1: The objection is that she was not a Justice Department
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Speaker 1: official before she was appointed. There are certain rules that
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Speaker 1: have to be followed when you are appointing a temporary
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Speaker 1: position within the Justice Department, and US attorneys need to
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Speaker 1: be Senate confirmed or they need to be given the
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Speaker 1: appointment by federal judges. It's allowed to have a temporary appointment,
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Speaker 1: but the temporary appointment must be somebody who comes from
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Speaker 1: within the Justice Department, which Lindsay Halligan does not.
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Speaker 2: So that's interesting because if the judge threw out the
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Speaker 2: indictment because she was not a legal appointee, I mean
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Speaker 2: the statute of limitations has run, they wouldn't be able
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Speaker 2: to bring the charges against him again.
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Speaker 1: Correct, the case would be completely dropped and there'd be
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Speaker 1: no ability to bring it back.
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Speaker 3: You know.
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Speaker 1: The only caveat is these are hard motions to win. Generally,
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Speaker 1: judges are hesitant to throw out cases that grand jury's
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Speaker 1: have returned, so so the defense does face some obstacles
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Speaker 1: to being able to do it. But the rules of
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Speaker 1: how US attorneys are appointed in what they can actually
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Speaker 1: do raise legitimate questions for the defense to challenge the
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Speaker 1: appointment of Halligan.
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Speaker 2: So Fitzgerald said that the defense hasn't been giving any
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Speaker 2: additional details about the charges. What kind of information is
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Speaker 2: he looking for?
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Speaker 1: Specifically, the defense wants to know who Komy authorized to
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Speaker 1: provide information, and what information that person provided and who
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Speaker 1: it related to. In the indictment, it says that Komy
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Speaker 1: authorized person three to provide information about person one. It's
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Speaker 1: pretty clear from everything we know that person one is
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Speaker 1: actually Hillary Clinton, but what's not clear is who is
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Speaker 1: person three that actually provided the information. And Komi's defense
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Speaker 1: is saying that to this date, they still have not
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Speaker 1: been told specifically the details of the indictment, which they
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Speaker 1: need to know in order to mount their defense.
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Speaker 2: It was a very skimpy indictment. Just explain what he's
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Speaker 2: accused of doing. It.
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Speaker 1: It's not the leak, yeah, correct. Comy's accused of lying
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Speaker 1: to Congress, making a false statement during a testimony that
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Speaker 1: he gave to the Senate Judiciary Committee in September of
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Speaker 1: twenty twenty. So it was five years ago, and that's
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Speaker 1: why the Justice Department was up against the statute of
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Speaker 1: limitations in order to bring this charge. And so what
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Speaker 1: the Justice Department said is that during Kmy's testimony, Comy
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Speaker 1: said that he stood by previous testimony that he never
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Speaker 1: authorized anybody to leak information about either the Hillary Clinton
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Speaker 1: investigation or the Trump investigation. And what the Justice Department
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Speaker 1: is saying is that Komy made a false statement by
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Speaker 1: saying he stood behind his previous testimony. So Komy is
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Speaker 1: not being charged with actually authorizing the leak. He's being
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Speaker 1: charged with lying about authorizing the leak.
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Speaker 2: The prosecutor's response was there's a lot of classified information here.
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Speaker 2: Were they saying that they couldn't turn things over fast.
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Speaker 1: So the new wrinkle from today was that the prosecution
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Speaker 1: said that there's a large amount of discovery material that
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Speaker 1: they have to sort through, which includes classified information. Up
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Speaker 1: until now, we had never heard them say that there
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Speaker 1: is a trove of classified information, and that could complicate
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Speaker 1: the ability of the case to move forward and also
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Speaker 1: Komy to mount his defense because the government needs to
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Speaker 1: work out a process by which classified information can be
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Speaker 1: shared with Komy's defense team or provided to the judge
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Speaker 1: under seal. And I think everybody was surprised when the
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Speaker 1: prosecution said that they have classified information that they need
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Speaker 1: to sort through, and the judge quickly said he does
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Speaker 1: not intend to have a long delay, if any delay
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Speaker 1: as a result of needing to deal with classified information.
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Speaker 1: The judges basically ordered the prosecution team to get their
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Speaker 1: act together, sort through all of the discovery, determine how
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Speaker 1: they're going to handle the classified information, and provide the
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Speaker 1: necessary material to Komy for his defense.
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Speaker 2: The judge said, this doesn't appear to be an overly
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Speaker 2: complicated case. I mean, they can certainly give Komy the
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Speaker 2: name of the people in the indictment. I mean that
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Speaker 2: seems bare minimum.
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Speaker 1: Yeah, it was surprising that the government had not already
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Speaker 1: provided Komy and his lawyers with the just the basic
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Speaker 1: information of who they allege Komy authorized to leak information
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Speaker 1: the lawyer for Komy said that they had had no
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Speaker 1: discussion with the government until yesterday, and even then that
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Speaker 1: was a very brief discussion, and so Comy's defense is
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Speaker 1: saying that they need to see the details of what
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Speaker 1: the charges actually are. And it really speaks to how
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Speaker 1: unusual this case, you know, has been from the start,
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Speaker 1: and how there might be a problem with the ability
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Speaker 1: of the new US attorney, who has never prosecuted as
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Speaker 1: a case before, to manage this prosecution.
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Speaker 2: The two prosecutors who have signed on to handle the
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Speaker 2: case are both based in North Carolina, as opposed to
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Speaker 2: the Eastern District of Virginia where the case is taking place.
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Speaker 1: YEP, it's our understanding that most of the career officials
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Speaker 1: in the US Attorney's Office for the Eastern District of
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Speaker 1: Virginia looked at the case and determined that there wasn't
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Speaker 1: sufficient evidence to bring a case or go to the
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Speaker 1: grand jury and get an indictment, and so none of
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Speaker 1: them are willing to sign on to this case. And
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Speaker 1: Trump installed a brand new US attorney who went and
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Speaker 1: got the indictment by herself, with no other prosecutors from
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Speaker 1: the office signed onto the indictment. And then had to
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Speaker 1: bring in assistant US attorneys from another office in order
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Speaker 1: to appear in court today.
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Speaker 2: I don't know if I've ever heard of anything like
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Speaker 2: that happening before.
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Speaker 1: I haven't.
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Speaker 2: What do we know about the judge because President Trump
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Speaker 2: has already called him a crooked Joe Biden appointed judge.
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Speaker 1: So the judge's reputation, he's very respected and considered to
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Speaker 1: be studious and knowledgeable of the law. He previously served
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Speaker 1: in the Justice Department. He came onto the bench with experience,
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Speaker 1: and he's been handling cases in the Eastern District of
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Speaker 1: Virginia for several years now, and these are can be
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Speaker 1: some of the most complicated cases that the Justice Department
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Speaker 1: deals with. In this case, though, as the judge said,
9:28
Speaker 1: it appears to be just a relatively straightforward case and
9:33
Speaker 1: should only take a couple of days with the trial,
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Speaker 1: and so there's nothing that indicates that the judge should
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Speaker 1: have any problem with being able to manage a relatively simple,
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Speaker 1: straightforward case.
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Speaker 2: So the trial is scheduled for January fifth. Are there
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Speaker 2: any other hearings scheduled?
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Speaker 1: Yes, there will be two hearings with oral arguments, one
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Speaker 1: in the November and one in December, and then along
10:02
Speaker 1: the way there'll be status reports, and there's supposed to
10:06
Speaker 1: be an agreement on how to handle discovery. The judge
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Speaker 1: actually said to get an agreement by this Friday between
10:17
Speaker 1: the government and the defense and if they can agree
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Speaker 1: on how to handle discovery by this Friday, then both
10:23
Speaker 1: sides are supposed to present their own proposals on Monday,
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Speaker 1: at which point the judge will then work out a
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Speaker 1: compromise between the two.
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Speaker 2: Could the prosecution be using these classified materials as a
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Speaker 2: sort of stalling tactic.
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Speaker 1: It can be used by the government as a stalling technique.
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Speaker 1: The government, when they're dealing with classified information, they have
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Speaker 1: to go through a process by which they come to
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Speaker 1: a decision on whether declassifying information or giving the Defense
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Speaker 1: Council a clearance to be able to review the classified information.
11:00
Speaker 1: And so what can happen in very complicated cases is
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Speaker 1: that the intelligence agencies that basically own the classified information
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Speaker 1: might resist allowing it to be shared with the Defense
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Speaker 1: Council for some reason, maybe a national security reason, or
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Speaker 1: because it relates to some kind of an ongoing investigation
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Speaker 1: or an ongoing operation. And so we need to see
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Speaker 1: how the government is going to proceed with the classified
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Speaker 1: information in Comy's case. If they come back and say
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Speaker 1: that there's resistance to declassifying the information or sharing the information,
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Speaker 1: then that could throw a wrench into the schedule for
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Speaker 1: the upcoming hearings on the motions and the actual trial.
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Speaker 1: But again the judges said, he does not look at
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Speaker 1: this as being a complicated case at all, and he
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Speaker 1: basically ordered the prosecution to figure out everything they need
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Speaker 1: to do very quickly, and that he's not going to
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Speaker 1: allow them to play games.
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Speaker 2: Well, see how fast he can move it along. Thanks
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Speaker 2: so much, Chris. That's Bloomberg Legal reporter Chris Strom coming up.
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Speaker 2: Colorado's ban on conversion therapy is on the line at
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Speaker 2: the Supreme Court. This is Bloomberg. Colorado is one of
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Speaker 2: twenty seven states that bar licensed counselors from using talk
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Speaker 2: therapy to try to change a child sexual orientation or
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Speaker 2: gender identity. Colorado's Solicitor General, Shannon Stevenson defended the law
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Speaker 2: at the Supreme Court, arguing that the Constitution allows states
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Speaker 2: to protect patients from harmful treatments. Even if a regulation
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Speaker 2: incidentally affects speech.
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Speaker 4: State cannot lose its power to regulate the very professionals
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Speaker 4: that it licenses just because they are using words. A
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Speaker 4: healthcare provider cannot be free to violate the standard of
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Speaker 4: care just because they are using words. And a state
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Speaker 4: cannot be required to let its vulnerable young people waste
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Speaker 4: their time and money on an ineffective, harmful treatment just
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Speaker 4: because that treatment is delivered through words.
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Speaker 2: A Christian counselor is challenging the twenty nineteen law as
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Speaker 2: violating her free speech rights, saying it wrongly bars her
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Speaker 2: from offering voluntary faith based therapy for kids, and the
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Speaker 2: Court's conservative justices appear to agree with her during oral
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Speaker 2: arguments questioning the constitutionality of the law. Here are Chief
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Speaker 2: Justice John Roberts and Justice Samuel Alito.
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Speaker 5: In other words, just because they're engaged in conduct, it
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Speaker 5: doesn't mean that their words aren't protected.
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Speaker 6: One viewpoint is the viewpoint that a miner should be
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Speaker 6: able to obtain talk therapy to overcome same sex attraction
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Speaker 6: if that's what he or she wants, and the other
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Speaker 6: is the viewpoint that the miner should not be able
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Speaker 6: to obtain taught therapy to overcome same sex attraction, even
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Speaker 6: if that is what he or she wants. Looks like
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Speaker 6: blatant viewpoint discrimination.
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Speaker 2: Liberal justice is Sonya so To Mayor and Katanji Brown
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Speaker 2: Jackson suggested they would back the law.
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Speaker 4: So Too.
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Speaker 2: Mayor was the only justice who addressed the harms that
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Speaker 2: all major medical associations warn about conversion therapy.
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Speaker 6: There are studies that say that this advice does harm
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Speaker 6: the people emotionally and physically.
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Speaker 2: And Jackson question the First Amendment implications.
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Speaker 3: Whether a therapist who is acting in their professional capacity
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Speaker 3: to help someone achieve their goals, is really expressing the
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Speaker 3: kind of message or expressing a message for First Amendment purposes.
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Speaker 3: I mean, I understand if ms Child's here were writing
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Speaker 3: an article about conversion therapy or writing or giving a
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Speaker 3: speech about it.
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Speaker 2: My guest is an expert on religion in the law.
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Speaker 2: Caroline Malacorbin, a professor at the University of Miami Law School.
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Speaker 2: Will you explain conversion therapy and Colorado's law, as about half.
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Speaker 5: The states in the country have done Colorado banns something
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Speaker 5: that has been called gay conversion therapy that now probably
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Speaker 5: also includes trans conversion therapy, so it's just known as
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Speaker 5: conversion therapy, and it's the idea of trying to convince
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Speaker 5: someone who is gay that they're not actually gay, or
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Speaker 5: trying to convince someone who is trans that they're not
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Speaker 5: actually trans. And this approach to gay and trans people
15:46
Speaker 5: has been proven to be very delictorious for their mental
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Speaker 5: well being, and so states have forbidden it. They have
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Speaker 5: made it illegal for licensed medical professionals to provide this
16:03
Speaker 5: as part of their practice of medicine. So to be
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Speaker 5: very clear, it doesn't ban clergy from talking to people
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Speaker 5: about sexual orientation or gender identity, and it doesn't even
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Speaker 5: ban the therapists from talking about it in their own
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Speaker 5: free time. But if they are in the process of
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Speaker 5: providing health care services that they have been licensed to provide,
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Speaker 5: they're not allowed to try and convince gay people that
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Speaker 5: they're not gay, or trans people that they're not trans.
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Speaker 5: That's the law, and.
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Speaker 2: What's the fundamental issue in the case.
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Speaker 5: So you have this law. It says, if you're licensed
16:44
Speaker 5: by the state, the state does not allow you to
16:47
Speaker 5: do things that are contrary to the standard of care,
16:50
Speaker 5: and so you cannot provide conversion therapy. And we have
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Speaker 5: this white Christian woman who argues that the ban forbids
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Speaker 5: her from providing the type of therapy that she wants
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Speaker 5: to practice. She gets help from Alliance to Friending Freedom
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Speaker 5: and they argue that this ban on conversion therapy violates
17:14
Speaker 5: her free speech rights. And so the question before the
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Speaker 5: court is does this ban on this medical therapy violate
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Speaker 5: the licensed practitioners' free speech rights? And the legal question
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Speaker 5: that makes all the difference is whether providing conversion therapy
17:36
Speaker 5: is speech or whether it's conduct. Because if it's speech,
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Speaker 5: then it implicates the free speech clause. In fact, it
17:46
Speaker 5: becomes presumptively unconstitutional. If, on the other hand, it's considered conduct,
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Speaker 5: then it doesn't trigger the free speech clause and the
17:56
Speaker 5: government is likely to be allowed to regulate it. So
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Speaker 5: the million dollar constitutional question is how should this practice
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Speaker 5: of conversion therapy get characterize? Is it speech or is
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Speaker 5: it conduct? Now, I just want to point out that
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Speaker 5: the speech in the colloquial sense doesn't always match speech
18:19
Speaker 5: in the constitutional sense. So let me give you a
18:22
Speaker 5: couple of examples when speech is not actually speech, which
18:27
Speaker 5: seems counterintuitive. And yet, if for example, you told national
18:34
Speaker 5: security secrets to a foreign enemy, that's speech, but that
18:39
Speaker 5: it wouldn't be treated as speech, it would be treated
18:42
Speaker 5: as the conduct of treason. It's not protected by the
18:46
Speaker 5: free speech clause, or for example, a sign on a
18:51
Speaker 5: restaurant that said, we do not hire fill in the blank,
18:54
Speaker 5: we do not hire black people, or Latino people or
18:57
Speaker 5: Asian people. Right, that's words, But that would be considered speech.
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Speaker 5: It would be considered the act of discrimination. And so
19:07
Speaker 5: while it may seem really obvious on its face, well,
19:11
Speaker 5: this is words and therefore it's speech, it's not quite
19:14
Speaker 5: as clear cut as the Supreme Court is going to
19:19
Speaker 5: probably conclude.
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Speaker 2: It seems like there's almost universal agreement among the legal
19:26
Speaker 2: experts who listen to the oral arguments that Colorado is
19:31
Speaker 2: going to lose and the Christian counselor is going to win.
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Speaker 5: I mean, clearly, whenever you have a white conservative Christian
19:43
Speaker 5: arguing before the Supreme Court, they're going to win, especially
19:47
Speaker 5: if the only thing is at stake, and I say
19:49
Speaker 5: only from the Court's perspective is LGBTQ rights. They just
19:54
Speaker 5: don't care, right, So, I think it was a foregone conclusion,
19:58
Speaker 5: apart from any of the lead principles, that the white
20:02
Speaker 5: Christian woman was going to win. You know, I never
20:05
Speaker 5: used to predict the outcome of Supreme Court cases, but
20:08
Speaker 5: it seems the pattern is so clear these days that
20:11
Speaker 5: I think one could say with a certain degree of
20:14
Speaker 5: confidence that she's going to win. And they're basically going
20:17
Speaker 5: to say this is speech, and therefore it is presumptively unconstitutional,
20:24
Speaker 5: and only if the government has a super compelling justification
20:28
Speaker 5: for its law, and the law was the only way
20:34
Speaker 5: to accomplish its goals, it's not going to win. In
20:36
Speaker 5: other words, it's going to have to pass what is
20:39
Speaker 5: known as strict scrutiny, and that is very hard to
20:41
Speaker 5: do in the speech context.
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Speaker 2: It seemed like most of the discussion was about what
20:46
Speaker 2: standard should be applied here.
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Speaker 5: Well, that's because if it is considered speech, then the
20:54
Speaker 5: standard is going to be strict scrutiny. And if it
20:57
Speaker 5: is not speech, then it's only going to be rational
21:00
Speaker 5: basis scrutiny. So what level of scrutiny a court must
21:04
Speaker 5: give to this law, how hard it looks at it,
21:08
Speaker 5: questions it, the level of evidence the government needs to
21:13
Speaker 5: provide will depend on whether it is speech or conduct,
21:18
Speaker 5: because again, if it is speech, then it implicates the
21:22
Speaker 5: free speech clause.
21:24
Speaker 2: Is this a novel issue coming to the court? Have
21:27
Speaker 2: they decided any similar cases?
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Speaker 5: The Supreme Court is not deciding this against a blank slate.
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Speaker 5: They have already considered the question of medical treatment and
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Speaker 5: speech conduct, but in the abortion context. So I want
21:44
Speaker 5: to highlight that many states who are hostile to abortion,
21:49
Speaker 5: one of the things that they require their abortion providers
21:52
Speaker 5: to do is to give women certain information about abortion. So,
21:58
Speaker 5: for example, you have to let women know that adoption
22:03
Speaker 5: is an option, or that fathers have to pay child support.
22:06
Speaker 5: Other states have held that women have to be told
22:10
Speaker 5: all the harms that may result from abortion, some of
22:13
Speaker 5: which are not even medically accurate. But the point I
22:16
Speaker 5: want to make here is that doctors challenge this regulation
22:20
Speaker 5: on speech grounds and argued, the government is forcing us
22:24
Speaker 5: to say things that are contrary to what we believe
22:29
Speaker 5: is appropriate and correct. And you might think, well, these
22:33
Speaker 5: are words, and they're being forced to articulate a particular
22:38
Speaker 5: viewpoint on things, for example, don't have an abortion, you know,
22:42
Speaker 5: adopt your child out instead. That it too should be
22:46
Speaker 5: considered a regulation of speech that limits that sort of
22:51
Speaker 5: compels a viewpoint. It's a viewpoint based restriction and therefore
22:55
Speaker 5: should trigger strict scrutiny and be presumptively unconstitutional. But that
23:01
Speaker 5: is not what the Supreme Court did. What the Supreme
23:04
Speaker 5: Court said is that these laws that compel doctors to
23:09
Speaker 5: speak against their will and say things that they don't
23:12
Speaker 5: want to say, the Supreme Court held that is not
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Speaker 5: a regulation of speech, that is actually a regulation of
23:20
Speaker 5: the medical profession that only incidentally affects speech. So they're
23:26
Speaker 5: deciding this case against a backdrop of the Supreme Court
23:32
Speaker 5: already having held in a different context that speech that
23:38
Speaker 5: is connected to the provision of medical treatment is not
23:42
Speaker 5: necessarily going to be treated like speech. And so you know, oh,
23:48
Speaker 5: it just so happens, right that if you're challenging something
23:51
Speaker 5: that's anti abortion, it's not speech, but if you're challenging
23:56
Speaker 5: something that's pro LGBT, it is speech.
24:01
Speaker 2: If the Justices rule for the Christian counselor here, how
24:04
Speaker 2: will they distinguish that case.
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Speaker 5: The way they will get around it is they will say, well,
24:11
Speaker 5: in the abortion case, it wasn't just speech. The doctors
24:15
Speaker 5: also did something, but in this case it is just speech,
24:20
Speaker 5: and that justifies treating the two differently. And they're going
24:24
Speaker 5: to use that same distinction, no doubt with their differential
24:29
Speaker 5: treatment of gender affirming care because you might think, well,
24:34
Speaker 5: if providing medical services now is going to implicate the
24:38
Speaker 5: free speech clause, then perhaps other kinds of medical care
24:44
Speaker 5: should also have free speech protection, like gender affirming care
24:47
Speaker 5: when you talk to your doctor and they also provide
24:51
Speaker 5: some psychological counseling. If it's just psychological counseling, then perhaps
24:57
Speaker 5: they will get the same protection as a therapist who
25:00
Speaker 5: just provides talk therapy. But if it's gender firming care
25:04
Speaker 5: coupled with some actual medicine, then they'll say no, no, no, no.
25:10
Speaker 5: That's the regulation of medicine that doesn't get any heightened reviewer,
25:15
Speaker 5: a very limited heightened review as opposed to regulation of speech.
25:20
Speaker 2: Justice Katanji Brown Jackson questioned why the Colorado law should
25:25
Speaker 2: be struck down while the court upheld a different measure
25:29
Speaker 2: from Tennessee that bands transition related treatments for minors. But
25:34
Speaker 2: she didn't push very hard on and she was the
25:36
Speaker 2: only one who really mentioned it.
25:38
Speaker 5: Yes, exactly, because we have the scrimmatic case that was
25:42
Speaker 5: decided recently where states are banning gender firming care and
25:47
Speaker 5: the court upheld that they were not challenged on free
25:50
Speaker 5: speech grounds. They were challenged on different grounds. But she
25:54
Speaker 5: is right to point out the very different results and
25:58
Speaker 5: how the results all seem to favor again conservative and
26:04
Speaker 5: Christian views at the expense of the LGBTQ community.
26:09
Speaker 2: Coming up, might the justices send the case back to
26:12
Speaker 2: the lower court. I'm June Grosso. When you're listening to Bloomberg,
26:20
Speaker 2: A majority of Supreme Court justices seem likely to side
26:24
Speaker 2: with a Christian counselor challenging bands on LGBTQ plus conversion
26:30
Speaker 2: therapy for kids as a violation of her First Amendment rights.
26:35
Speaker 2: I've been talking to Professor Caroline Malcorbin of the University
26:39
Speaker 2: of Miami Law School. So let's just go back to
26:42
Speaker 2: the basics for a second. Will you explain what Colorado's
26:46
Speaker 2: basic argument is and what the Christian counselor's argument is.
26:52
Speaker 5: Again, they took different sides on this major legal question
26:58
Speaker 5: of whether the conversion therapy should be conceptualized as speech
27:04
Speaker 5: or as conduct. So the therapist argued that this is speech,
27:10
Speaker 5: and any time the government regulates the content of speech,
27:15
Speaker 5: that regulation is presumptively unconstitutional and must pass what is
27:21
Speaker 5: known as strict scrutiny in order to survive. So if
27:25
Speaker 5: it's speech, it is not going to be constitutional unless
27:29
Speaker 5: the government can articulate a compelling goal for the law
27:34
Speaker 5: and can argue that there was no other way to
27:36
Speaker 5: accomplish it. The state, on the other hand, was arguing
27:41
Speaker 5: that this was just part and parcel of the state's
27:44
Speaker 5: regulation of the medical profession, that the state had a
27:48
Speaker 5: responsibility that those it has licensed to provide medical services
27:54
Speaker 5: only provide medical care that meets the consent standard of care.
28:02
Speaker 5: And the consensus in the medical community is that conversion
28:05
Speaker 5: therapy is a bad thing, that it has studies show
28:10
Speaker 5: that it harms people who are forced to undergo it,
28:13
Speaker 5: and so those are the two sides of the debate
28:17
Speaker 5: on that very central question is how do we conceptualize this?
28:22
Speaker 2: Do you make anything out of the fact that Justice
28:24
Speaker 2: Brett Kavanaugh asked no questions at all during the ninety minutes.
28:29
Speaker 5: I don't know how to read that. So again, I
28:31
Speaker 5: just want to emphasize it's not necessarily crazy to say
28:34
Speaker 5: this is speech. But I want to just highlight the
28:38
Speaker 5: fact that when they encountered a similar argument with regard
28:42
Speaker 5: to doctors whose speech was being regulated, they were very
28:46
Speaker 5: dismissive of the speech claims that literally, these were laws
28:51
Speaker 5: that say, doctors, you must provide this information to your patients.
28:56
Speaker 5: Even if it's not medically sound, or medically necessary or
29:00
Speaker 5: medically relevant, you still have to say these words, right,
29:04
Speaker 5: So it seems even a further step away from the
29:07
Speaker 5: provision of medical care because it wasn't even appropriate medical care. Nonetheless,
29:12
Speaker 5: the court said, no, no, no, no, this is just
29:15
Speaker 5: the state's regulation of the provision of medical treatment. And therefore,
29:20
Speaker 5: because it's the parcel of the practice of medicine, which
29:24
Speaker 5: is a highly regulated field, the state is allowed to
29:28
Speaker 5: regulate its doctors and the provision of care. This too
29:33
Speaker 5: is someone who is licensed by the state, and this
29:35
Speaker 5: too is regulating their provision of care. So it's really
29:40
Speaker 5: hard to principally dis one case from the other case.
29:45
Speaker 5: And if this is going to be considered speech protected
29:48
Speaker 5: by the free speech clause, then it's going to become
29:50
Speaker 5: even harder to understand why abortion doctors speech is not
29:55
Speaker 5: also speech that's protected by the free speech clause.
29:59
Speaker 2: Is there any chance that they would send this back
30:01
Speaker 2: to a lower court for more proceedings.
30:04
Speaker 5: So that was another thing that they were wrangling with.
30:08
Speaker 5: I think some of the liberal justices had given up
30:10
Speaker 5: on persuading the majority that this was not speech that
30:14
Speaker 5: triggers strict scrutiny, and so there were two options. They
30:20
Speaker 5: could announce, say this is actually speech, it's subject to
30:24
Speaker 5: strict scrutiny, and they could remand it back to the
30:27
Speaker 5: lower courts to actually apply the scrutiny in the first instance,
30:31
Speaker 5: or they could just apply it themselves. And there was
30:36
Speaker 5: some attempt to at least have a court say all right,
30:41
Speaker 5: this is going to trigger strict scrutiny, and we're going
30:44
Speaker 5: to let the lower courts look at it. So Colorado
30:47
Speaker 5: has a chance to make its argument that this advance
30:51
Speaker 5: is a very compelling goal, namely the protection of LGBTQ kids,
30:56
Speaker 5: and that the law was narrowly tailored to accomplish that goal,
31:01
Speaker 5: that this is really the only way to protect them
31:03
Speaker 5: against the harms of conversion therapy is by not allowing
31:08
Speaker 5: conversion therapy. So the fact that it's speech doesn't automatically
31:14
Speaker 5: mean that the law is unconstitutional. It just makes it
31:19
Speaker 5: that much harder for the state to make its argument
31:22
Speaker 5: about why it should stand.
31:24
Speaker 2: There was also a standing question because here this law
31:28
Speaker 2: has been on the book since twenty nineteen and the
31:30
Speaker 2: state has yet to enforce it. The plaintiff here is
31:34
Speaker 2: represented by, as you mentioned, the Alliance Defending Freedom, and
31:38
Speaker 2: they're also the group that represented a Christian website designer
31:42
Speaker 2: in Colorado who didn't want to work on websites for
31:46
Speaker 2: same sex couples even though no one had asked her to.
31:50
Speaker 2: Is Alliance Defending Freedom just going after these particular causes
31:54
Speaker 2: and finding a plaintiff to sue.
31:57
Speaker 4: Well.
31:57
Speaker 5: I don't know exactly what they're doing, but they are
32:00
Speaker 5: clearly at the vanguard of pressing conservative Christian claims that
32:08
Speaker 5: disadvantage and harm the LGBT community. And I think that
32:14
Speaker 5: the Court is receptive to these claims and is eager
32:18
Speaker 5: to decide them in favor of this conservative Christian ideas
32:25
Speaker 5: and will not let themselves be bothered by something like standing.
32:31
Speaker 2: The Supreme Court has been steadily rolling back protections for
32:35
Speaker 2: gay and transgender people in recent terms, and I was
32:37
Speaker 2: just trying to remember the last time I can think
32:40
Speaker 2: of that LGBTQ wrights one at the Supreme Court was
32:46
Speaker 2: the boss Stock case in twenty twenty. Is that the
32:49
Speaker 2: last time.
32:50
Speaker 5: I think so? And even then they always anticipated a
32:55
Speaker 5: carve out for anyone who protested on religious grounds. I
33:00
Speaker 5: think the public has less confidence in this Supreme Court
33:04
Speaker 5: than any court that I remember. I think they have
33:08
Speaker 5: really undermined their own credibility by so aggressively promoting a
33:16
Speaker 5: particular ideology, and to do so at the expense of
33:22
Speaker 5: a marginalized community is not to their honor. And let's
33:27
Speaker 5: be clear, they get to pick and choose their cases.
33:31
Speaker 5: There was nothing that require them to decide this case.
33:37
Speaker 5: I think in addition to its long standing attack on
33:41
Speaker 5: the LGB community, I think we also are seeing here
33:47
Speaker 5: a real disparagement of expertise, which we also saw in Screbetti,
33:54
Speaker 5: because to be clear, there is a consensus in the
33:59
Speaker 5: medical community that this therapy is really harmful, and yet
34:03
Speaker 5: they did not seem to accept that. Instead, they kept
34:08
Speaker 5: pushing back against this idea that the experts knew what
34:13
Speaker 5: they were talking about, and certainly Alliance Defending Freedom is
34:17
Speaker 5: helping them by producing all kinds of questionable claims about
34:23
Speaker 5: the reliability of the science underlying the medical consensus. And
34:30
Speaker 5: to be sure, the medical community has made errors in
34:33
Speaker 5: the past, but if we have to rely on something,
34:38
Speaker 5: you know better to rely on medical experts and the
34:42
Speaker 5: weight of the medical community than a right wing political
34:48
Speaker 5: group who has a particular Mission.
34:51
Speaker 2: And later in the term the Supreme Court, we'll be
34:54
Speaker 2: hearing another case involving transgender girls and women participating in
35:00
Speaker 2: female sports. Thanks Caroline. That's Professor Caroline Malacorbin of the
35:05
Speaker 2: University of Miami Law School. And that's it for this
35:09
Speaker 2: edition of The Bloomberg Law Show. Remember you can always
35:11
Speaker 2: get the latest legal news on our Bloomberg Law Podcast.
35:14
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35:18
Speaker 2: www dot bloomberg dot com, slash podcast Slash Law, And
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Speaker 2: remember to tune into The Bloomberg Law Show every weeknight
35:26
Speaker 2: at ten pm Wall Street Time. I'm June Grosso and
35:29
Speaker 2: you're listening to Bloomberg