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Weekend Law: SCOTUS Rebukes Trump, LGBTQ Books & Sarah Palin · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grosseol from Bloomberg Radio.
0:08
Speaker 1: The answer is, I always abide by the courts, always
0:12
Speaker 1: abide by.
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Speaker 2: It, and will appeal.
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Speaker 1: I never did defy a court order school.
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Speaker 3: I always abide by the courts, and then I'll have
0:18
Speaker 3: to appeal it.
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Speaker 4: President Trump has said repeatedly that he always obeys court orders,
0:23
Speaker 4: but critics say there is evidence that his administration has
0:27
Speaker 4: not been obeying court orders, even those of the Supreme Court,
0:32
Speaker 4: and it appears the justices have had enough. Thus, the
0:35
Speaker 4: Supreme Court issued an emergency order with incredible speed in
0:40
Speaker 4: extraordinary circumstances last Saturday at one in the morning, within
0:45
Speaker 4: just eight hours of getting an application, before the government
0:49
Speaker 4: had time to respond, before the Fifth Circuit issued its ruling,
0:53
Speaker 4: and before Justice Samuel Alito could finish writing his dissent,
0:58
Speaker 4: the Supreme Court ordered the government not to deport any
1:01
Speaker 4: of the Venezuelan detainees until further notice, and only the
1:06
Speaker 4: two most conservative justices dissented. My guest is constitutional law
1:11
Speaker 4: expert Michael Dorf, a professor at Cornell Law School. Mike
1:15
Speaker 4: this order in the middle of the night, without following
1:18
Speaker 4: normal procedures like waiting for the government's response and the
1:22
Speaker 4: Fifth Circuit's decision and Justice Alito's dissent. Does this show
1:27
Speaker 4: that the justices don't trust the Trump administration to obey
1:31
Speaker 4: their orders.
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Speaker 1: Absolutely. The Court had in an earlier case said that
1:39
Speaker 1: the government should not remove any of the Venezuelans without
1:44
Speaker 1: first giving them notice and an opportunity to file a
1:47
Speaker 1: habeas corpus petition. Here, the Venezuelans who were being held
1:52
Speaker 1: in Texas received notices in English, which most of them
1:56
Speaker 1: don't speak or read, saying that they would be removed
1:59
Speaker 1: in an There was no mention of the right to
2:02
Speaker 1: file a havias petition, and so when the foul District
2:06
Speaker 1: Judd didn't act within just over two hours, the lawyers
2:10
Speaker 1: realized that the government might move the case by taking these.
2:13
Speaker 5: People out of the country sending them to Salvador, and
2:16
Speaker 5: so they went to the Supreme Court seeking emergency relief.
2:20
Speaker 5: The fact that the justices acted when they did in
2:23
Speaker 5: the middle of the night so quickly without the response,
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Speaker 5: as you say, I think, clearly indicates at least sevenjustices
2:30
Speaker 5: felt the same way as the lawyers did for these Venezuelans.
2:35
Speaker 1: Namely, the government couldn't be trusted to abide by the
2:39
Speaker 1: Justice's previous command.
2:42
Speaker 4: It was a short order, eleven lines, no explanation, but
2:46
Speaker 4: Justice Alito's scathing descent was five pages. He objected to
2:51
Speaker 4: granting what he called unprecedented and legally questionable relief, saying,
2:58
Speaker 4: we had no good reason to think that under the circumstances,
3:02
Speaker 4: issuing an order at midnight was necessary or appropriate. Does
3:06
Speaker 4: this mean he still believes that the Trump administration is
3:08
Speaker 4: listening to orders of courts?
3:10
Speaker 1: Well, it either means that he believes that or he
3:14
Speaker 1: doesn't care, right, I mean, he might think that whether
3:18
Speaker 1: or not the administration is going to comply, we meaning
3:23
Speaker 1: the Court, have to abide by our procedural rules, and
3:27
Speaker 1: got every eye across every t In fact, what he
3:29
Speaker 1: said at the end of his assent was, you know,
3:31
Speaker 1: the executive branch needs to apply to the law, but
3:34
Speaker 1: so do we. What he didn't say, of course, was well,
3:37
Speaker 1: what happens if the executive branch isn't complying with judicial orders?
3:41
Speaker 1: Does that mean, as the majority clearly thought, that you
3:46
Speaker 1: take extraordinary measures.
3:48
Speaker 4: President Trump and the administration continue to say that they'll
3:53
Speaker 4: follow court orders, they're obeying court orders. Trump did complain
3:57
Speaker 4: Monday on being stymied at every turn by the courts,
4:00
Speaker 4: and said the administration can hold trials for every detainee
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Speaker 4: they want to report, because it would take two hundred years.
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Speaker 6: First, I think it's inarguable that they are not fully
4:13
Speaker 6: complying with orders of the lower courts, and there is
4:17
Speaker 6: pretty good evidence that they are not complying in good
4:20
Speaker 6: faith with the Supreme Court. So, in addition to not
4:24
Speaker 6: giving the Venezuelans the notice to which they are entitled,
4:29
Speaker 6: the administration in the Abrago Garcia case.
4:33
Speaker 1: Has flatly refused to comply with its obligation said by
4:39
Speaker 1: the Supreme Court to facilitate his return.
4:42
Speaker 6: With respect to the President's claim that, you know, giving
4:46
Speaker 6: these migrants due process would be a too onerous burden
4:50
Speaker 6: that assumes that what they're entitled to is a kind
4:53
Speaker 6: of full dress criminal trial, that's not true. There are
4:58
Speaker 6: statutory guidelines that allow for very much expedited hearings, but
5:04
Speaker 6: they do require some kind of a hearing. You can't
5:07
Speaker 6: just have.
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Speaker 1: People in unmarked vans scooping people up off the street
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Speaker 1: and then shipping them off to a foreign country that's
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Speaker 1: not even their home country. When there are, as an
5:18
Speaker 1: abrago Garcia's case, court orders forbidding that, or, as in
5:22
Speaker 1: some of these other cases, no real evidence that they
5:26
Speaker 1: are subject to deportation at this point. Now, having said that.
5:30
Speaker 6: President Trump is right that if he were to attempt
5:33
Speaker 6: the kind of massive deportation of everybody in the United
5:38
Speaker 6: States who entered undocumented, that it would be difficult to
5:42
Speaker 6: do that in a timely manner because there are procedures
5:46
Speaker 6: that have to be followed. But he also doesn't have
5:50
Speaker 6: the manpower. He doesn't come to budget.
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Speaker 1: Do anything like that.
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Speaker 4: Anyway, Trump and the administration have been steadfast in saying
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Speaker 4: that they're not going to bring Garcia back, but they're
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Speaker 4: also blaming it on the President of l Salvador.
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Speaker 6: Yeah, I mean, I think that is in pretty clear
6:10
Speaker 6: defiance of at least the federal district judges order. Now
6:15
Speaker 6: you can say that in the earlier case that all
6:17
Speaker 6: the Supreme Court did was to ask the federal district
6:21
Speaker 6: judge to clarify what she meant by facilitate. But you know,
6:28
Speaker 6: the court pretty clearly approved of the obligation for facilitation,
6:33
Speaker 6: and you know, there was a remarkable decision by a
6:37
Speaker 6: unanimous pre judge panel of the Fourth Circuit, in which
6:41
Speaker 6: Judge J. Harvey Wilkinson, the third who's a very conservative
6:45
Speaker 6: appointee of Ronald Reagan, really called the administration to task
6:50
Speaker 6: for doing literally nothing to facilitate a Brego Garcia's return
6:56
Speaker 6: and warned in pretty ominous terms of the potential death
7:00
Speaker 6: of the law here. So you know, in the face
7:03
Speaker 6: of that, the Trump administration is continuing nonetheless to you know,
7:09
Speaker 6: simply not do anything for Abrego Garcia. And what's so
7:12
Speaker 6: remarkable about this is that, you know, they could say, well,
7:16
Speaker 6: we're going to comply, and then ask the President of
7:19
Speaker 6: El Salvador, hey, can we.
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Speaker 1: Have Abregio Garcia back, and he might then say, well, no,
7:24
Speaker 1: I'd really rather keep him, because, after all, he is
7:26
Speaker 1: at El Salvador in national now it's fruit. We sent
7:29
Speaker 1: him back there by a mistake, and there was a
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Speaker 1: judicial order forbidding that, but that order doesn't bind the
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Speaker 1: government of El Salvador. But the Trump administration isn't even
7:39
Speaker 1: willing to ask, and they could they could ask. This
7:42
Speaker 1: wouldn't be good faith compliance, but they could ask while winking,
7:45
Speaker 1: and then they could go back to the judge and said.
7:47
Speaker 6: Well, we asked, and he said no. But they're not
7:49
Speaker 6: even willing to do that.
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Speaker 1: Because they see this as a matter of power politics.
7:54
Speaker 4: I mean, until now, the conservative justices have been giving
7:58
Speaker 4: Trump narrow procedure yer wins that have allowed him to,
8:02
Speaker 4: for the most part, run his agenda. Does this mark
8:05
Speaker 4: a turning point in the majority's approach to the administration,
8:10
Speaker 4: I hope so.
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Speaker 6: I have been highly critical of the Roberts Court for
8:16
Speaker 6: some time now for treating Donald Trump as an individual
8:20
Speaker 6: and his administration in their official capacity, treating them the
8:24
Speaker 6: way you would treat any president who you know, occasionally
8:27
Speaker 6: pushes the edge of the envelope of their authority, but
8:30
Speaker 6: then when subject to a ruling, complies, which has been
8:33
Speaker 6: true of every Democratic and Republican president, you know, for
8:37
Speaker 6: as long as we can remember, accepting extraordinary circumstances like
8:41
Speaker 6: Lincoln during the.
8:41
Speaker 1: Civil War something like that. The one that was sort
8:44
Speaker 1: of most disturbing to me was the immunity ruling last year,
8:48
Speaker 1: which the Court said, well, you know, we don't want
8:49
Speaker 1: to amstring the president because in the future there might
8:53
Speaker 1: be you know, sort of tit for tab retaliation against
8:55
Speaker 1: former presidents back to lead to all sorts of trouble,
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Speaker 1: sort of thinking about the long term and ignoring what
9:01
Speaker 1: is essentially an emergency right in front of them. And
9:05
Speaker 1: I was a little concerned that that was what was
9:07
Speaker 1: going on in the last few months, as this second
9:10
Speaker 1: roup administration proved to be much more radical than the first.
9:14
Speaker 1: But it looks like and I'm hopeful that, you know,
9:17
Speaker 1: the Court is beginning to realize that they're not dealing
9:21
Speaker 1: with a normal, law abiding president and administration, but a
9:25
Speaker 1: you know, a person who's seriously threatening constitutional democracy, and
9:30
Speaker 1: that they need to stand up to him.
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Speaker 4: The Court announced a special session on May fifteenth to
9:36
Speaker 4: hear arguments on Trump's executive order upending birthright citizenship. Why
9:41
Speaker 4: would the Court agree to hear a case like that
9:44
Speaker 4: outside its regular schedule when all three lower courts that
9:48
Speaker 4: considered it ruled against the administration, finding the executive order unconstitutional.
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Speaker 6: Well, you know, the Court did not take the case
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Speaker 6: to decide the substance issue, but the Solicitor General didn't
10:02
Speaker 6: even ask the Court to decide the subside of issue.
10:05
Speaker 6: All of the Court is deciding is the authority of
10:10
Speaker 6: a federal district judge to give a so called nationwide
10:14
Speaker 6: injunction that has been a long running source of controversy
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Speaker 6: actually in both Democratic and Republican administrations. It's been frustrating
10:25
Speaker 6: to presidents of either party when a single federal district judge,
10:30
Speaker 6: often selected by the plaintiffs because they know their ideological leanings,
10:36
Speaker 6: you can do a little bit of forum shopping or
10:38
Speaker 6: even judge shopping by deciding where to file, but a
10:41
Speaker 6: single district judge, so it sets nationwide policy, at least
10:45
Speaker 6: for the short run.
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Speaker 1: And so some of the justices have for a long
10:49
Speaker 1: time been concerned about this phenomenon. I think that it's
10:54
Speaker 1: extremely unlikely that the Court will in this case rule
10:59
Speaker 1: on and the birthright citizenship issue as a substantive matter.
11:03
Speaker 6: Now, that doesn't stop the media or actually even President
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Speaker 6: Trump from portraying this as something else entirely. So, you know,
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Speaker 6: as soon as the Court announced that it was going
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Speaker 6: to hear argument, Trump said something like, well, you know,
11:18
Speaker 6: this is very misunderstood. That's about slavery. He said by
11:22
Speaker 6: that he was referring to the birthright citizenship clause of
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Speaker 6: the fourteenth Amendment. So he seems to think, or at
11:30
Speaker 6: least he's saying, that this case is about the substance.
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Speaker 4: But it really isn't, and it may actually lengthen the
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Speaker 4: Supreme Court's term. Thanks so much, Mike Best. Professor Michael
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Speaker 4: Dworf of Cornell Law School. Coming up next, the Supreme
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Speaker 4: Court considers parents religious objections to LGBGQ friendly children's books.
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Speaker 4: I'm June Grosso. When you're listening to Bloomberg. Uncle Bobbie's
11:54
Speaker 4: Wedding is the story of a same sex wedding where
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Speaker 4: a niece worries that her uncle won't have as much
12:00
Speaker 4: time for her after he gets married. It's one of
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Speaker 4: a handful of children's books with LGBTQ characters at the
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Speaker 4: center of a Supreme Court case, but the oral arguments
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Speaker 4: seem more like a contentious book club. When Liberal Justice
12:16
Speaker 4: Sonya Sotmayor and conservative Justice Samuel Leto gave competing interpretations
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Speaker 4: of the book, and the Chief Justice had to intervene.
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Speaker 3: Two men Little Bob Bobby's Wedding where they're getting married.
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Speaker 3: One is black and one is white. In this rendition
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Speaker 3: of the book, I had one with mice. The two
12:39
Speaker 3: male mice looked identical to me. Is looking at two
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Speaker 3: men getting married? Is that the religious objection?
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Speaker 2: I don't think anybody can read that and say, well,
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Speaker 2: this is just telling children that there are occasions when
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Speaker 2: men marry other men. Uncle Bobby gets married to his
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Speaker 2: boyfriend Jamie, and everybody's happy and everything is you know,
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Speaker 2: it portrays this. Everyone accepts this, except for the little
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Speaker 2: girl Chloe, who has reservations about it. But her mother
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Speaker 2: corrects her, Now, you shouldn't have any reservations about this.
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Speaker 2: As I said, it has a clear mora, It has
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Speaker 2: a clear moral message.
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Speaker 3: Just answer my question is looking at the pictures, is
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Speaker 3: there any affidavit from any parent that merely looking at
13:32
Speaker 3: people getting married holding hands, None of them are even
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Speaker 3: kissing at any of these books. The most they're doing
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Speaker 3: is holding hands. That mere exposure to that is coercion.
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Speaker 4: Welcome back to the culture wars at the Supreme Court
13:47
Speaker 4: where several parents are objecting to incorporating the LGBTQ friendly
13:52
Speaker 4: books into the elementary school curriculum on religious grounds, and
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Speaker 4: after two and a half hours of oral arguments, it
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Speaker 4: seems clear that the conservative justice is will rule for
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Speaker 4: the public school parents. My guest is first Amendment law
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Speaker 4: expert Caroline Mala Corbin, a professor at the University of
14:12
Speaker 4: Miami Law School, Caroline, these books are not about religion,
14:17
Speaker 4: their stories with LGBTQ characters. Yeah.
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Speaker 7: So, basically, the case that the Supreme Court heard oral
14:25
Speaker 7: argument on Tuesday morning concern a religious liberty challenge brought
14:32
Speaker 7: by parents who argued that they had a constitutional free
14:37
Speaker 7: exercise right to prevent their children from reading books with
14:42
Speaker 7: LGBTQ characters. And from the tenor of the argument, it
14:47
Speaker 7: does seem quite likely that the Supreme Court will agree
14:51
Speaker 7: with them and grant them this as a constitutional right.
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Speaker 4: Do the conservative justices readily accept the the idea that
15:01
Speaker 4: these books about a same sex wedding, about a puppy
15:04
Speaker 4: that gets lost at an LGBTQ pride parade, and a
15:08
Speaker 4: young child whose gender identity doesn't match his birth assigned sex,
15:14
Speaker 4: that these books violate the religious beliefs of the parents.
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Speaker 7: So definitely, the parents bringing them are religiously conservative, although
15:24
Speaker 7: they're not only Christian. I think there are also some
15:27
Speaker 7: Muslim parents as well. And the Justices very much accepted
15:33
Speaker 7: the idea that having children read these books would impose
15:38
Speaker 7: a substantial burden on the parents free exercise, which is
15:43
Speaker 7: a stunning expansion of what it means for the government
15:50
Speaker 7: to impose a substantial burden on someone's religious exercise. So originally,
15:55
Speaker 7: when we thought about government imposed burdens, it would be
15:59
Speaker 7: something and like the government is preventing you from observing
16:05
Speaker 7: a tenant of your faith, Like the government made it
16:08
Speaker 7: impossible for you to observe your sabbath or participate in
16:13
Speaker 7: the sacramental use of pyote, something that was really a
16:17
Speaker 7: central religious practice. The Rabbits Court has already expanded what
16:23
Speaker 7: counts as a substantial burden to not just view yourself
16:28
Speaker 7: violating a religious tenant, but for someone to endorse or
16:34
Speaker 7: facilitate a third party's violation of religious tenants. So we
16:39
Speaker 7: have the Supreme Court being very sympathetic to people who
16:43
Speaker 7: argue that baking a cake for a same sex wedding
16:48
Speaker 7: would be akin to endorsing the sin of same sex
16:52
Speaker 7: marriage or facilitating the sin of same sex marriage.
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Speaker 8: That first expansion was.
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Speaker 7: Its off already quite a broad reading of what counts
17:04
Speaker 7: as a substantial burden. But what we may see after
17:08
Speaker 7: the Supreme Court hands down its decision in this case
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Speaker 7: is just hearing about people who act in a way
17:15
Speaker 7: as contrary to your religious tenants suffices to be a
17:19
Speaker 7: substantial religious burden, because that's ultimately what's going on in.
17:24
Speaker 8: These public schools.
17:25
Speaker 7: The children are hearing about the existence of two men
17:31
Speaker 7: getting married, or they become aware that there are transgender
17:35
Speaker 7: people in the world, and if that information is not
17:40
Speaker 7: accompanied by a condemnation of it, then it seemed like
17:44
Speaker 7: there were five justices who thought that that could amount
17:47
Speaker 7: to a very serious infringement on the parents' free exercise rights.
17:53
Speaker 7: I am willing to bet that there are at least
17:56
Speaker 7: five justices who thought that there is a free speech
18:00
Speaker 7: violation here.
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Speaker 4: So what were the main concerns of the conservatives.
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Speaker 7: The main concern was that they were hearing about LGPT
18:11
Speaker 7: community without hearing the condemnation of it, and therefore, in
18:17
Speaker 7: their eyes, that equates to indoctrinating their children into accepting
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Speaker 7: gay people or transgender people, and that is contrary to
18:30
Speaker 7: their own religions which condemn them.
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Speaker 4: Justice Sodo Mayor said, haven't we made it very clear
18:37
Speaker 4: that the mere exposure to things that you object to
18:40
Speaker 4: is not coercion? And then she talked about this book
18:43
Speaker 4: Uncle Bobby's Wedding, and she said that none of them
18:46
Speaker 4: are even kissing in any of these books. And then
18:49
Speaker 4: Justice Alito actually read from the book, saying there was
18:53
Speaker 4: a clear moral message.
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Speaker 7: His argument was, this book not only articulates that these
19:01
Speaker 7: people exist, but it also conveys the message that these
19:06
Speaker 7: people are people, and they're okay, and there's nothing wrong
19:11
Speaker 7: with two men marrying each other. And that is what
19:14
Speaker 7: he equates to indoctrination of children in the classroom, which,
19:20
Speaker 7: of course is not the only way to think about
19:22
Speaker 7: what those books are doing. One of the central goals
19:27
Speaker 7: of the public schools system is to train children to
19:33
Speaker 7: live in a democracy, and one of the preconditions for
19:37
Speaker 7: us all coexisting together is that we learn that we're
19:43
Speaker 7: not all alike, and that even if there are people
19:46
Speaker 7: who are different from us, we should still treat them
19:51
Speaker 7: with dignity and humanity and record them the same respect
19:58
Speaker 7: that we ourselves would to receive. And so I think
20:02
Speaker 7: the reason the school included these books in the first
20:07
Speaker 7: place is to try and teach that very basic civic
20:13
Speaker 7: lesson to little kids.
20:15
Speaker 8: But that message that.
20:16
Speaker 7: These books, again, they're surprisingly innocuous. I think the main
20:21
Speaker 7: point of Uncle Bobby's wedding was that she was a
20:24
Speaker 7: little upset her favorite uncle might get married and she
20:28
Speaker 7: wouldn't get to hang out with him anymore. And the
20:30
Speaker 7: message she learned is she.
20:31
Speaker 8: Didn't lose an uncle, She'd got another one.
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Speaker 7: You know, that kind of message you often see in
20:37
Speaker 7: children's books. But again, the very presentation of the LGBT
20:42
Speaker 7: community as regular people who we should not condemn as
20:49
Speaker 7: doing something against I don't know, God's orders is considered
20:54
Speaker 7: to be unacceptable to the religiously conservative families.
20:58
Speaker 4: And the author of Uncle Bobby's Wedding, Sarah Brennan, told
21:01
Speaker 4: Slay that she was dismayed by the way Justice Alito
21:05
Speaker 4: characterized the book and that Justice Sodomayor really understood the
21:09
Speaker 4: book's message. And all three of the liberal justices focused
21:14
Speaker 4: on the line drawing problems presented by this.
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Speaker 7: Case, because again, the principle that they were arguing for is,
21:24
Speaker 7: if there is something in the curriculum that a religious
21:28
Speaker 7: parent objects to on the grounds that it is contrary
21:32
Speaker 7: to their own faith, that they have the right to
21:36
Speaker 7: know an advance that that it's going to be taught,
21:39
Speaker 7: and the right to.
21:40
Speaker 8: Pull their children from the classroom. So there was no.
21:43
Speaker 7: Limit by age, there was no limit by subject matter.
21:47
Speaker 7: And of course we live in a magnificently diverse country
21:51
Speaker 7: where people have all different kinds of beliefs, And so
21:55
Speaker 7: there was one line of questioning, is, well, what if
21:57
Speaker 7: parents object to interracial marriages get noticed and would have had.
22:01
Speaker 8: Of some object to interfaith marriages.
22:04
Speaker 7: What if some belong to religions that oppose having women
22:08
Speaker 7: who work outside of the home, are they now entitled
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Speaker 7: to notice any time there is a social studies class
22:15
Speaker 7: or a literagy class that features a woman who's worked
22:18
Speaker 7: outside of the home. What about parents who believe in
22:21
Speaker 7: the literal interpretation of the Bible and take that to
22:26
Speaker 7: mean that evolution is false? Does that mean that they
22:29
Speaker 7: can pull their kids from the evolution section of a
22:33
Speaker 7: biology class? Or and this is another question that was asked,
22:37
Speaker 7: what if a parent objects to a teacher using the
22:43
Speaker 7: appropriate pronoun for a transgender child in the class, does
22:47
Speaker 7: that mean that they can say, I don't want my
22:50
Speaker 7: child in this class, I'm entitled to a completely different teacher.
22:54
Speaker 7: And the lawyer for the parents did concede that yes,
22:59
Speaker 7: there were some parents who would find that to be
23:02
Speaker 7: the substantial burden on their own religious exercise if the
23:06
Speaker 7: teacher uses appropriate pronouns for another transgender child in the class.
23:11
Speaker 4: So what's the question the court is going to answer.
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Speaker 7: Well, the questions before them is are these parents entitled
23:19
Speaker 7: under the.
23:19
Speaker 8: Free exercise Clause.
23:21
Speaker 7: To have the right of notice and the right to.
23:24
Speaker 8: Off their children out?
23:25
Speaker 7: How the court gets there may depend on which route
23:30
Speaker 7: the court takes. We've been focusing on a very traditional
23:33
Speaker 7: one where the court says, well, this law is not
23:36
Speaker 7: neutral and generally applicable, it's sort of targeting religion. Second
23:40
Speaker 7: is does this requirement does this book impose a substantial
23:45
Speaker 7: burden on the parents' right to practice their religion? And finally,
23:49
Speaker 7: is there a compelling government interest that everyone read this book?
23:53
Speaker 8: And is there no other way.
23:55
Speaker 7: The school can accomplish It's really important government interests that
23:59
Speaker 7: don't infringe on the religious parents' rights. So one way
24:04
Speaker 7: or another, the Quarter is going to say distant fringes
24:07
Speaker 7: on people's religion, and the government can't justify insisting on
24:13
Speaker 7: reading these books because ultimately they could read other books.
24:16
Speaker 4: So we'll see which way the justices get to that
24:19
Speaker 4: seemingly inevitable conclusion. Thanks so much, Caroline. That's Professor Caroline
24:25
Speaker 4: Malcorbin of the University of Miami Law School coming up.
24:29
Speaker 4: Sarah Palin loses her defamation case again. I'm June Grosso.
24:33
Speaker 4: When you're listening to Bloomberg. Former Alaska Governor Sarah Palin
24:38
Speaker 4: became well known in two thousand and eight as a
24:41
Speaker 4: late John McCain's vice presidential running mate. She also became
24:45
Speaker 4: well known for a series of verbal slips, gaffs, and
24:50
Speaker 4: generally cringe worthy moments. There are next door neighbors, and
24:54
Speaker 4: you can actually see Russia from land here in Alaska.
24:58
Speaker 9: Obviously got to stand with our North Korean allies. We're
25:01
Speaker 9: bound to by trees were bound by.
25:05
Speaker 1: Yeah, I told.
25:06
Speaker 9: Congress, thanks, but no thanks for that bridge.
25:09
Speaker 3: To nowhere up in Alaska.
25:10
Speaker 4: Since then, palin star has gradually faded, although the spotlight
25:15
Speaker 4: returned to her in twenty seventeen when she sued The
25:18
Speaker 4: New York Times for defamation over an editorial. But this week,
25:23
Speaker 4: for the second time, Manhattan Jerry found that The Times
25:26
Speaker 4: did not defame Palin. Joining me is an expert in
25:30
Speaker 4: First Amendment law. Samantha Barbis, a professor of law at
25:33
Speaker 4: the University of Iowa College of Law, tell us why
25:37
Speaker 4: Palin sued the Times.
25:39
Speaker 9: So this story goes back to twenty eleven, when there
25:43
Speaker 9: was a tragic shooting of Representative Gabby Giffords in Arizona,
25:49
Speaker 9: and six years later there was another tragic shooting at
25:54
Speaker 9: a baseball game in which various Republican politicians were participating
26:00
Speaker 9: and the congressman was hit. In the day after that,
26:03
Speaker 9: the New York Times ran an editorial in which it
26:07
Speaker 9: suggested that there was a link between kind of violent
26:12
Speaker 9: political environment that various people were promoting and these tragic
26:17
Speaker 9: mass shootings. In particular, it pointed to a digital graphic
26:22
Speaker 9: that had been produced by Sir Palin's Political Action Committee
26:26
Speaker 9: I think back in twenty eleven, around the time of
26:29
Speaker 9: the Arizona shooting, and that graphic us crosshairs to target
26:34
Speaker 9: various congressional districts that I guess Palin was interested in
26:40
Speaker 9: focusing on, interested in having her campaign focus on these
26:43
Speaker 9: democratic political districts. But The New York Times suggested that
26:47
Speaker 9: that was actually kind of an incitement to violence, the
26:50
Speaker 9: use of crosshairs and inciting people to take disho's action
26:55
Speaker 9: against their political enemies. And so the Times effectively linked
26:58
Speaker 9: that graphic to the shooting of Gabby Gifford in Arizona,
27:03
Speaker 9: and Sarah Palin said that this was false, that her
27:06
Speaker 9: political action committee had nothing to do with the shooting,
27:10
Speaker 9: and that her reputation was injured. She was the famed,
27:14
Speaker 9: and that's the origin of her libel claim against The.
27:16
Speaker 6: New York Times.
27:17
Speaker 4: This legal fight has been going on for eight years now,
27:21
Speaker 4: and this is the second time that a jury has
27:23
Speaker 4: heard the case and ruled against her. What happened the
27:27
Speaker 4: first time.
27:28
Speaker 9: Importantly, the standard here is actual malice. So because Sarah
27:32
Speaker 9: Palin is a public figure, she had to show that
27:37
Speaker 9: the false statement was made with reckless disregarding the truth,
27:41
Speaker 9: so that the Times either knew the statement was false
27:43
Speaker 9: and published in any way, or had really strong reason
27:46
Speaker 9: to believe that the statement was untrue. So the first
27:50
Speaker 9: time this was in twenty twenty two. You know, during
27:52
Speaker 9: the trial, the evidence was presented about what the Time
27:56
Speaker 9: opinion page editor knew and did not know when this
27:59
Speaker 9: editors oriole was issued, and the judge, Judge Raycoff, at
28:04
Speaker 9: the close of the trial suggested that even if the
28:08
Speaker 9: jury found for Sarah Palin, he would set aside the decision.
28:14
Speaker 9: And while the jury was deliberating, apparently they were notified
28:20
Speaker 9: of Judge Raycoff's pronouncement. If you would satisfy the verdicts,
28:23
Speaker 9: and some of them even got push notifications on their
28:26
Speaker 9: phones about this. They obviously found in favor of The Times,
28:30
Speaker 9: and Sarah Palin keealed, suggesting that these procedural irregularities narrated
28:37
Speaker 9: a new trial, and that's why we had the trial
28:41
Speaker 9: that concluded days ago.
28:43
Speaker 4: The person in charge of the Times opinion section admitted
28:46
Speaker 4: he'd made a mistake, said he acted quickly to rectify it.
28:50
Speaker 4: So was the main question for the jury whether he
28:54
Speaker 4: acted with reckless disregard for the truth?
28:57
Speaker 9: Yeah, So again the issue was is what did the
29:01
Speaker 9: Times editor know at the time he made the decision
29:05
Speaker 9: to publish this editorial. Did he know that these statements
29:09
Speaker 9: were false connecting Palin to the shooting? Did he have
29:14
Speaker 9: strong reason to believe that the statements were false and
29:17
Speaker 9: nevertheless allow them to be issued. And so it's the
29:20
Speaker 9: Times argument that you know, we were careless right, We
29:24
Speaker 9: made a mistake. We apologized our journalism was sloppy here,
29:28
Speaker 9: but we attempted to correct that as quickly as possible.
29:31
Speaker 9: And what we did didn't rise to the level of
29:34
Speaker 9: reckless disregard to the truth. It was merely negligent and
29:36
Speaker 9: that's not sufficient in a libel case involving a public figure.
29:40
Speaker 4: So did Palin's testimony relate at all to that question
29:44
Speaker 4: or was it just about damages?
29:47
Speaker 9: So Palin's testimony was about the harm that she alleged
29:52
Speaker 9: that she suffered. She said things like, you know, it
29:55
Speaker 9: kicked the oomph out of you. I guess the language
29:58
Speaker 9: he used right to describe how injurious these statements were
30:02
Speaker 9: to her sense of self, her emotional state. But interestingly,
30:06
Speaker 9: I don't think she was able to demonstrate that she'd
30:09
Speaker 9: actually suffered reputational harm. I don't think she lost any
30:12
Speaker 9: speaking engagements or book deals or anything tangible as a
30:16
Speaker 9: result of this allegation. But yes, her testimony was mainly
30:21
Speaker 9: on the harm that she had suffered.
30:23
Speaker 4: So what do you think the message is when a
30:25
Speaker 4: second jury, after deliberating only about three hours, came back
30:30
Speaker 4: with the same verdict as the jury two years ago
30:33
Speaker 4: that The Times didn't defame Palin?
30:36
Speaker 1: Yeah?
30:36
Speaker 9: Well, I think the conclusion is that actual malice is
30:40
Speaker 9: a very high barred clear and that it does a
30:44
Speaker 9: good job protecting the press in situations where there may
30:48
Speaker 9: be an honest mistake, a mistake that a responsible news
30:53
Speaker 9: publication goes out of his way to attempt to correct
30:56
Speaker 9: and actual malice says that that's not punishable. Now there's
31:02
Speaker 9: the question of whether or not Palin will attempt to
31:05
Speaker 9: appeal this, and whether this win for The Times will
31:09
Speaker 9: sort of fuel the momentum that's out there to get
31:13
Speaker 9: the Supreme Court to reconsider the actual malice standard that's
31:16
Speaker 9: kind of lurking in the background of this.
31:18
Speaker 4: I think Palin's lawyers said that they wanted to use
31:21
Speaker 4: this to attack the precedent the landmark New York Times
31:26
Speaker 4: the Sullivan case explain how that case has come under
31:29
Speaker 4: fire recently.
31:32
Speaker 9: So the attack on New York Times versus Sullivan really
31:36
Speaker 9: started in earnest I think back in twenty sixteen when
31:39
Speaker 9: Trump announced that he wanted to open up libel laws
31:43
Speaker 9: to make it easier for him than his allies to
31:46
Speaker 9: sue the press for libel and I think what he
31:49
Speaker 9: was referring to was getting the Supreme Court to overrul
31:53
Speaker 9: New York Times versus Sullivan. So Ever since then, there
31:57
Speaker 9: have been a number of conservative lawyers and activist groups
32:01
Speaker 9: and pundits who have been making this case, arguing that
32:05
Speaker 9: Sullivan is outdated, that it doesn't protect reputation enough that
32:11
Speaker 9: it protects, you know, the lying press, and that it
32:14
Speaker 9: needs to go. And these pundits and lawyers have been
32:19
Speaker 9: focusing in particular on some cases decided by the Supreme
32:23
Speaker 9: Court after Sullivan in nineteen sixty seven, when it extended
32:27
Speaker 9: the Sullivan Actual Mouth standards of public figures. So Sullivan
32:31
Speaker 9: dealt only with public officials, and so the extension, sometimes
32:35
Speaker 9: called the Progeny of Sullivan, really create a broad protection
32:39
Speaker 9: for the press against libel suits. But that has really
32:42
Speaker 9: been a target of these opponents. They want the court
32:46
Speaker 9: to get rid of that public figure standard or to
32:48
Speaker 9: limit the definition of who is a public figure. And
32:52
Speaker 9: you know, we may see that having increasing traction in
32:54
Speaker 9: the coming years.
32:55
Speaker 4: You've written a best selling book on the subject called
32:59
Speaker 4: Actual Malle. So do you think that the standard is
33:02
Speaker 4: too high for plaintiffs to clear? Now?
33:04
Speaker 9: I think that the New York Times versus Sullivant standard
33:08
Speaker 9: and the extension the public figures really strikes an appropriate
33:12
Speaker 9: balance between the protection of reputation and protections for freedom
33:17
Speaker 9: of speech and press. It is possible to recover for
33:21
Speaker 9: injury reputation under our constitutional regime. Right if you can
33:26
Speaker 9: show this reckless disregard of the truth, you will be
33:29
Speaker 9: able to prevail. So it's not that libel law is dead,
33:32
Speaker 9: as some have said. It's just very difficult to meet
33:36
Speaker 9: the standard. And that's because we need to have a
33:38
Speaker 9: press that is free and robust. The Court said in Sullivan,
33:43
Speaker 9: press that can make an honest mistake in the course
33:46
Speaker 9: of gathering the news when procedures may be time pressured.
33:51
Speaker 9: So I think, you know, we have a system that's
33:53
Speaker 9: worked very well for the past sixty years that has
33:56
Speaker 9: really allowed a lot of important journalism to flourish. Still
34:00
Speaker 9: allows the same people to recover when they can meet
34:03
Speaker 9: that standard.
34:04
Speaker 4: I mean, I'm not sure how many people really followed
34:06
Speaker 4: this case. It did get a lot of publicity. Do
34:09
Speaker 4: you think the loss here encourages the movement to get
34:13
Speaker 4: rid of The New York Times v. Sullivan's standard. What's
34:17
Speaker 4: the impact of a loss in a case like this.
34:20
Speaker 9: Yeah, so I think they could point to this and say,
34:23
Speaker 9: you know, there was clearly wrongdoing on the part of
34:26
Speaker 9: the Times. The Times admitted its mistake. Nevertheless, under our
34:31
Speaker 9: current constitutional regime, the plaintiffs Palin could not recover, and
34:35
Speaker 9: they would say that's unfair and that we need to
34:38
Speaker 9: kind of lower the bar to make it easier for
34:41
Speaker 9: public figures to recover when news media have been careless.
34:45
Speaker 9: So I can see this sort of playing into that
34:49
Speaker 9: campaign that argues actual malice is just too stringent a standard.
34:53
Speaker 9: It doesn't permit people who have been injured to get
34:56
Speaker 9: the compensation that they feel they deserve.
34:59
Speaker 4: Americans trust in the media continues to be low. Last year,
35:04
Speaker 4: for the third year in a row, a Gallup polls
35:07
Speaker 4: show that more Americans had no trust in the media
35:10
Speaker 4: thirty six percent then had trust in the media thirty
35:14
Speaker 4: three percent. So in this climate, is it a surprise
35:18
Speaker 4: that the jury came back for the New York Times
35:21
Speaker 4: or is it not a surprise because we're talking about
35:23
Speaker 4: a jury in New York City, which has been called
35:27
Speaker 4: the media capital of the world.
35:29
Speaker 9: Yeah, I think it was a little bit of a surprise.
35:33
Speaker 9: I mean, again, we have this trial taking place against
35:37
Speaker 9: a cultural and political backdrop that has not been very
35:42
Speaker 9: favorable to the press. The press is increasingly accused of
35:46
Speaker 9: noddying objective trustworthiness is question and so I would not
35:51
Speaker 9: have been surprised to have seen a jury go for Palin.
35:56
Speaker 9: I think today in libel cases, even when there's week
35:59
Speaker 9: of a of actual malice, the journey might be motivated
36:03
Speaker 9: to be reckless disregard to the truth, just because of
36:06
Speaker 9: this distrust of the press.
36:08
Speaker 6: It's so pervasive.
36:09
Speaker 4: Any final thoughts, I.
36:11
Speaker 9: Mean, I think that this could add to the momentum
36:14
Speaker 9: to over ruler New York Times versus Sullivan and the
36:17
Speaker 9: progeny cases. And so I think those of us who
36:20
Speaker 9: are concerned with press freedoms are going to be watching
36:23
Speaker 9: as closely to see what happened.
36:24
Speaker 4: I enjoyed our discussion, Samantha, thanks so much for coming
36:27
Speaker 4: on the show. That's Professor Samantha Barbas of the University
36:31
Speaker 4: of Iowa College of Law. Her book is entitled Actual Malice,
36:36
Speaker 4: Civil Rights and Freedom of the Press in New York
36:39
Speaker 4: Times Vast Sullivan. And that's it for this edition of
36:42
Speaker 4: The Bloomberg Law Show. Remember you can always get the
36:44
Speaker 4: latest legal news on our Bloomberg Law Podcast. You can
36:47
Speaker 4: find them on Apple Podcasts, Spotify, and at www dot
36:52
Speaker 4: Bloomberg dot com, slash podcast, Slash Law, And remember to
36:56
Speaker 4: tune into The Bloomberg Law Show every weeknight at ten pm,
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Speaker 4: one Wall Street Time. I'm June Grosso and you're listening
37:03
Speaker 4: to Bloomberg m