January 15, 2025 • 36 mins
Constitutional law expert David Super, a professor at Georgetown Law, discusses the executive orders President-elect Donald Trump says he will issue on day 1 of his administration. First amendment expert Eugene Volokh, a professor at UCLA Law School, discusses SCOTUS arguments on a Texas law that requires age verification to access porn sites. June Grasso hosts.
See omnystudio.com/listener for privacy information.
Mark as Played
Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:02):
This is Bloomberg Law with June Grossel from Bloomberg Radio.
Speaker 2 (00:08):
You know how beautiful the inauguration is. You're down and
you're walking up these beautiful stairs to capital, and everything's
so beautiful. As I'm walking up, I'll be signing about
four or five different documents. I'm not going to wait
to get to The.
Speaker 3 (00:23):
Executive actions are common on day one of a presidency,
but Donald Trump is planning an uncommon day one by
issuing around one hundred executive orders to cover everything from
closing the southern border and ending birthright citizenship to undoing
(00:44):
Biden's climate policies and rolling back the rights of transgender Americans.
Speaker 4 (00:50):
With a stroke of.
Speaker 5 (00:50):
My pen on day one, We're going to stop the
transgender lunacy, and I will sign executive orders to end
child sexual mutilation, get transgender out of the military and
out of our elementary schools and middle schools.
Speaker 4 (01:11):
And high school.
Speaker 3 (01:14):
It will be a first day shock and all campaign.
Some of the executive orders may be significant, but others
will be merely symbolic, and many will be challenged in
court and take months, if not years, of litigation. Joining
me is constitutional law expert David super a professor at
Georgetown Law, David explain what an executive order is and
(01:38):
the power it carries.
Speaker 1 (01:40):
I'm an executive order is simply a formal directive from
the President, as head of the executive Branch, to any
or all of his subordinates. It can be something that
is called for by an Act of Congress. It can
be issued under or the president's constitutional authorities as commander
(02:04):
in chief and as head of the executive department of government.
Speaker 3 (02:09):
Are there areas or things that the president can't do
by executive order?
Speaker 4 (02:15):
Yeah.
Speaker 1 (02:15):
The president can't do anything that he doesn't have the
authority to do, either from the Constitution or congrus. So
he can't amend or repeal laws. He can't abridge people's
First Amendment or do process freedoms. He can't exercise powers
that are not his.
Speaker 3 (02:35):
Do most executive orders require agencies to perform actions.
Speaker 1 (02:41):
For the most part, yes, because most laws delegate authority
to agencies. So an executive order is the President publicly
telling one or more agencies how it wants them to
use their delegated powers. Very few matters, not none, but
(03:01):
very few are delegated directly to the president.
Speaker 3 (03:06):
So then when an agency is ordered by executive order
to do something, they have to go through the Administrative
Procedure Act and the rules process, so it can't be
done immediately.
Speaker 1 (03:17):
No, and the agency can't do more than the law
allows it to do. So the president can direct the
agency to do six things, but if the agency only
has legal authority to do four of them, then that's
all that's ever going to happen.
Speaker 3 (03:34):
So Donald Trump says that he is going to issue
one hundred executive orders on day one, and to put
that into context, so far as of Monday, President Biden
has issued one hundred and fifty five executive orders over
four years. Do you think that's to create shock and awe?
Speaker 1 (03:54):
Well, I think that's the idea. There've been a number
of statements from the President and from members of his
team suggesting that they intend to have a shock in
law entrance.
Speaker 3 (04:07):
Immigration enforcement is and always has been Trump's number one priority.
He has said that on day one he's going to
close the US southern border, reinstate his travel bands, and
suspend refugee admissions into the country. Can he do those
things by executive order?
Speaker 1 (04:29):
He can do things that sound like that. And if
the goal of this is publicity, then perhaps he can
get the publicity he is seeking. But there's very extensive
laws about the ability to limit travel, about refugees' ability
(04:52):
to seek to come to this country, and a number
of the things in that area that have been discussed
publicly probably illegal.
Speaker 3 (05:01):
The Supreme Court did uphold his Muslim travel ban, but
circumstances have changed since then. So is there any guarantee
the Supreme Court would uphold another travel ban.
Speaker 1 (05:13):
There's no guarantee. That opinion was fairly deferential to the president,
but it didn't suggest that the president had a complete
blank check. So if the president justifies a travel ban
on factually sound and legally premiscipal grounds, it'll be upheld.
But remember, the travel ban that got to the Supreme
(05:36):
Court was not the first one or even the second
one that he issued. His first few travel bans were
so blatantly unlawful that they lost in lower courts, and
his Justice Department sensibly concluded there was no point in appealing.
Speaker 3 (05:54):
Are courts generally reluctant to stay or to overturn and
executive order? Do they give a lot of deference to
the president.
Speaker 1 (06:04):
I don't know that that's generally true. Executive orders often
don't do anything that could be challenged in court. An
executive order might, for example, say that agencies should take
the interests of veterans into account in implementing various authorities
under their control. That's not challengeable because it doesn't to
(06:27):
adversely affect anybody. If the President tries to take authority
that isn't his, courts feel a need to intervene to
preserve the separation of powers.
Speaker 3 (06:39):
Immigration advocacy groups, environmental groups, and some state ags are
sort of gearing up to challenge some of these orders
that he's promised, and another of his pledges is to
end birthright citizenship on day one. That's something that surely
(06:59):
will be challenged.
Speaker 1 (07:01):
Well, that's an example of an executive order that has
no legal authority taking a power that isn't his. That's
resolved by Section one of the fourteenth Amendment to the Constitution.
So neither the President nor Congress can change that. We
could only change that if we amended the constitution.
Speaker 3 (07:19):
He said, with the stroke of my pen on day one,
we're going to stop the transgender lunacy, that he'll sign
executive orders to get transgender people out of the military.
And out of our elementary schools and middle schools and
high schools well. He said, the official policy of the
US government will be that there are only two genders,
(07:42):
male and female. What can he do to restrict transgender
rights as he wants to.
Speaker 1 (07:50):
The most significant thing that he can do, and something
he's already been doing, is feeding the flaims of bigotry,
of hostility, and hatred. I don't think there's any question
that a significant number of transgender children will be driven
into depression and some to suicide as a result of
this hateful rhetoric. That's clearly within his power. Controlling what
(08:13):
happens in schools that are run by state and local
governments is not within his power. What about the military,
The president has considerable authority as commander in chief to
take steps to make the military more effective for the country.
Whether the courts would consider purging people who are serving
(08:36):
in the military honorably and have shown loyalty and proficiency
is another question.
Speaker 3 (08:42):
Now, he's also going to do something that is reminiscent
of what he did in his last term. He said
he's going to sign an executive order directing every federal
agency to immediately remove every single burdensome regulation driving up
the cost of goods. And he said that for every
regulation that a federal agency wants to put into effect,
(09:05):
it has to eliminate ten regulations.
Speaker 1 (09:09):
Well, it makes for good headlines, but it's pretty overtly illegal.
Each of the statutes that federal agencies implement have their
own legal criteria, and an agency should issue the regulations
the statute directs it to issue, and should not issue
regulations the statutes don't authorize. It is not a legal
(09:32):
or rational basis for deregulating that you needed to regulate
something else. He can't do that, And if an agency
tries to do repeals of the kind he's talking about,
those will surely be challenged and struck down in court.
In addition, it's very hard to tell when a regulation
(09:52):
is creating a burden and when it is removing a burden.
If you allow the airlines to change their schedules at
the last moment to lose baggage, you can say you're
reducing burdens on them, but you're increasing burdens on me
as a traveler.
Speaker 3 (10:12):
I mean, ken an agency just say we're getting rid
of that regulation, or do they have to put something
else in its place.
Speaker 1 (10:19):
It depends entirely on what the underlying statute provides. If
the statute says that you will regulate chemicals that are
determined to be hazardous to workers, then they can't simply
repeal a regulation with such a chemical unless they can
show scientific evidence that that chemical isn't hazardous to workers.
(10:44):
It's not up to their choice whether to regulate a
hazardous chemical once that's been identified under the statute, so
they could perhaps change the regulation, but even there they'd
need a scientific basis.
Speaker 3 (10:58):
So out of the seventy seven major rules in his
first administration that were challenged, Trump won thirty one point
two percent of the time, according to an analysis by
NYU Law School's Institute for Policy Integrity. What difference, if any,
does it make that in his first term, the Chevron
(11:19):
doctrine was in place, But in his second term there
is no Chevron doctrine, so that deference to agencies with
ambiguous rules is gone. Would that make any difference?
Speaker 1 (11:30):
That'll mean he'll lose more. The Chevron Doctrine was an
enormous help to President Trump. In his first term, a
number of very questionable legal rulings were sustained on that basis.
He doesn't have that to hide behind anymore, and if
his new rules are as badly resented as the ones
in his first term, he'll be very lucky to get
(11:53):
even close to thirty one percent success.
Speaker 3 (11:56):
He has talked about day one a lot in the
last few months, and he's said, look, I can undo
almost everything Biden did through executive order, and on day
one much of that will be undone. A president can
revoke the executive orders of his predecessor, right, although I
don't know how can revoke them all in one fail swoop.
Speaker 1 (12:18):
The president generally can revoke the predecessor's executive orders, and
he can sign a new executive order with a list
of fire executive orders that are ascended. If he tries
that with too broad a brush, he'll probably end up
doing some things that are embarrassing, repealing recognitions of this
(12:39):
or that agency or state or individual for heroic or
public minded service. But he can repeal just about any
executive order he wants to, unless there is some statute
that requires that executive order to stay in place, which
(12:59):
they're rarely is.
Speaker 3 (13:00):
We assume he's going to rely on executive orders a
lot has there been another president that relied on executive
orders so much?
Speaker 1 (13:10):
No, there have been presidents who've issued very important executive orders.
Certainly President Reagan did, President Clinton did, and they did
change the government with those, but they were targeted at
particular things that were within their authority and particular things
that the government could actually do.
Speaker 3 (13:31):
Congress could always pass a law that refutes the executive order.
But with the Congress the way it is, both houses
controlled by Republicans, does it seem like there's going to
be any sort of restraint on Trump.
Speaker 1 (13:47):
Well, there's a great deal of restraint from laws that
are already on the books in areas where he has
a great deal of discretion. I agree that this Congress
is unlikely to narrow that, but in many he does
not have broad discretion, and we don't need new laws
to impose restraints because we have existing ones.
Speaker 3 (14:08):
Do you think his aides learned by their experience with
executive orders the first time around?
Speaker 1 (14:14):
I don't know. There are certainly some people that are
coming back. Mister Vote is going to resume his seat
as director of OMB if he's confirmed by the Senate.
But a great many of them are different, and I
do see evidence of repeating mistakes that were made in
the first Trump administration.
Speaker 3 (14:35):
So I see a lot of litigation ahead in the
next four years. Thanks so much, David. That's Professor David
Super of Georgetown Law coming up next on the Bloomberg
Law Show. Supreme Court Justice is grappled today with a
first amendment challenge to a Texas law requiring age verification
(14:55):
to access porn sites.
Speaker 6 (14:58):
Sable, of course, was thirty five years ago. In that period,
the technological access to pornography obviously has exploded, right. I mean,
it's very difficult for fifteen year olds whatever to get
access to the type of things that is available with
the push of a button today. And the nature of
(15:20):
the pornography I think has also changed in those thirty
five years.
Speaker 3 (15:26):
Chief Justice John Roberts said the availability of pornography has
exploded with technology. Since the Court lasts grapple with restrictions
on obscene material, and it may require the Justices to
rethink the standard of scrutiny. The Court is deciding a
first amendment challenge to a Texas law that requires porn
(15:49):
sites to verify the age of users. An industry trade
group contends the law violates the privacy rights of adults,
and the Fifth Circuit Court of Appeals should have looked
at the law under a strict scrutiny standard that would
require Texas to have a compelling interest it can achieve
in the least restrictive way. However, many of the justices
(16:12):
seem skeptical that other less restrictive alternatives like content filtering,
would protect kids. Justice Amy Cony Barrett, who has seven children,
said she had first hand experience.
Speaker 7 (16:25):
I mean, kids can get online porn through gaming systems, tablets, phones, computers.
Let me just say that content filtering for all those
different devices, I can say from personal experience, is difficult
to keep up with. So and I think that the
explosion of addiction in to online porn has shown that
content filtering isn't working.
Speaker 3 (16:47):
And there's always the problem of parents and technology, as
Justice Samuel A. Leito pointed out to the attorney for
the industry trade group Derek Schaffer.
Speaker 1 (16:57):
Mister Schaffer, you know a lot of parents who are
more tech savvy than their fifteen year old children. Oh,
Justice Leto, it's a fair question, and I don't know that.
I think kids may be ahead of parents, but that's
a problem with this law. It's not solving for the fact.
Speaker 4 (17:13):
Now it's a problem with filtering.
Speaker 3 (17:15):
Isn't it joining me? Is First Amendment expert Eugene Volk,
a professor at UCLA Law School, Eugene Justice Sonia so
to mayor, So, the issue is the level of scrutiny
to be applied to the law. Is that the real
issue in the case.
Speaker 4 (17:31):
It is an issue. But if in some respects a
matter of legal labeling, there's a deeper issue behind. If
you just step back, we can think of two kinds
of speech. One is speech that holds within a First
Amendment exception. Could be true threats of criminal conduct, could
be incitement to christ, could be certain kinds of libel.
(17:53):
It could be obscenity in the sense of hardcore pornography
that is illegal for everybody. That kind of speech hits
within a First Tomment exception. It's constitutionally unprotected once you
apply the right test to determine whether it's fits into
one of those categories. At that point, restrictions on that
speech I oversimplify here, though, might be seen as justifiable
(18:16):
so long as there's a so called rational basis for them,
which is to say, they'll be upheld again once the
court concludes the speech is unprotected. So if there's a
law that in truth threats of illegal conduct the government
doesn't happen, then show that it's narrowly tailored to compelling interest.
There is an alternative to the law.
Speaker 2 (18:35):
What have you.
Speaker 4 (18:36):
The law is just constitutional wants it's funds to be
limited to the truth threats. Second category of speech is
all sorts of other speech, political advocacies, scientific speech, a
discussion about personal matters that is protected. If the government
wants to restrict that based on its content, it really
does have to show there's a compelling government interest. The
(18:57):
law is the least restrictive way of sin that interest.
It's a very hard.
Speaker 1 (19:01):
Stenter the show.
Speaker 4 (19:03):
But there is this third category that the Court has
recognized over the decades, and that is speech that is
unprotected for minors, so called harmful to minors or obscenis
to minors. Basically pornographic for minors or let's say unduly
pornographic therefore unacceptable to be distributed to minors, but at
(19:26):
the same time is constitutionally protected for adults. A lot
of pornography is that way. It's basically protected for adults.
But if you're trying to distribute it to minors, maybe
even seventeen year old miners, but certainly younger miners, it
is constitutionally unprotected. The question is what happens when there
are laws that limit speech within this kind of weird
(19:51):
intermediate category and at the same time those laws pretty
much invariably also burden speech that is a at adults
or there will be received by adults, because there needs
to be a way of sorting the miners for adults,
and those ways might interfere in some measure with adults.
So the question is how you deal with that. And
(20:12):
the court talked about various formulations you might think of
as a rational basis test for those kinds of restrictions,
or a strict scrutiny test, or some justice suggested kind
of a and the State of Texas suggests kind of
a burden based test, asking how much the law actually
does interfere with speech to adults. So those are the
(20:33):
legal formulations for are inmplating. The core question, though, is
how do you reconcile the permissibility of trying to shield
miners with the fact that any such restriction will impose
some burdens on adults and h screening will in particular
interfere in some measure with adults privacy because it might
require them to identify themselves in various ways. Those are
(20:56):
the questions that the corp was really dealing with them.
Speaker 3 (21:00):
The Fifth Circuit upheld the Texas law by relying on
a nineteen sixties case about a New York bookseller verifying
the age of customers before selling adult material. Was that
the case that they should have been relying on.
Speaker 4 (21:16):
So the problem is that the court has two precedents
that are pretty close to on point and the point
in pretty different directions. So in nineteen sixty eight, the
Supreme Court upheld in a case called Ginenberg versus New York,
upheld a law that basically said, it's the illegal to
sell certain pornographic materials that are protected for adults. It's
(21:39):
illegal to sell them to minors, and illegal to do
that if you know the person owned as a minor
or reasonably should know the person as a minor, And
one way of determining the law that whether he's going
as a minor is by carting the person by asking
to see an ID. And on the other hand, if
somebody comes in and they looked kind of borderline and
(22:00):
you don't card them, well, then you could be criminally
punished because you reasonably should have known that the person
was a miners. So people who look borderline, the law
would basically require them to show an ID.
Speaker 1 (22:12):
As a practical man.
Speaker 4 (22:13):
But then in ashcarf. The ACLU two, a two thousand
and four case, the Supreme Court struck down a law
that aimed at shielding miners on the Internet from this
kind of harmful to minors of seen as to minors
of material, and it said, well, on the Internet, there
are other alternatives that you could use that avoid the
(22:34):
burden on adults. For example filtering, so having stopped or
running on the computer that filters out certain pronographic websites
in the discretion of the computer's owner, who presumably would
be the parent. So those precedents point in opposite directions. Now,
in some sense, and probably in a substantial sense, Ashcart
(22:55):
the ACLU two seems more on points because it is
actually factually very similar to also involved Internet speech. On
the other hand, the court there was really quite tentative
and it said, well, a lot depends on fast changing technology.
Justice Brier had a distending opinion where he said, look,
filtering isn't really that effective, and the government should be
(23:17):
able to provide extra protection beyond what is provided by filtering.
And a lot of justices of today's arguments were pretty
skeptical about filtering. Their view was that it's like after
twenty extra years of experience, in twenty years extra years
of technological development. Their view was, you know, filtering when
every child has a smartphone and ex friends who have
(23:39):
smartphones and such, just isn't going to do much. So
that's why some of the justices at least seemed a
lot more open to applying, to applying Giinsburg and suggesting that, look,
this is just the online analogue of parting people as
was used with porn stores back of the day. I
suppose porn stores to use them, how if their business
(24:02):
facing competition from the internet.
Speaker 3 (24:04):
Justice score such at one point asked whether they should
try to keep the same principles for online sites as
for brick and mortar stores.
Speaker 4 (24:16):
That's right, that's right, and this is of course a
big part of the state's argument. Look, it's okay to
require ID at bricks and mortar stores. The First Amendment
applies regardless of the medium generally speaking. On the other hand,
the challengers argument is twofold. First of all, they say
what should happen is the same test should be applied
(24:38):
to both. And they say the tests should be strict
scrutiny because of the burden that the law imposes on
adult Now, the test may play out differently for different
kinds of stores. In the bricks and mortar world, there's
no filtering, right, parents can't put glasses on their children
that keeps them from being porn in the bricks and
mortar stores. But on the Internet there is still print.
(25:01):
So a law that may be the least restrictive alternative
requiring krding, maybe the least restrict of alternative is a
practical matter for bookstores and movie theaters might not be
the least restrict of alternative on the Internet. The other
thing that the challengers say is that on the Internet,
checking ID is actually more burdensome on adults because we
(25:25):
know on the Internet you put in some information, potentially
it's now available, indefinitely distributable, indefinitely hackable, and as a result,
people are going to be much more worried about giving
their identifying information in a way that ties them to
internet porn than in the old days, where look, you
show the ide, nobody's going to write down your name,
(25:48):
or your driver's license, member or what have you. Most
you might worry that the bookstore clerk is going to
remember and gossip to someone about it, but there will
be substantial professional reasons for so. The argument that these
challengers are making is, yes, let's apply the same standards.
It's just those standards end up playing out differently as
(26:10):
the different technologies because the facts are different to the
different technologies.
Speaker 3 (26:14):
Coming up next on the Bloomberg Law Show, I'll continue
this conversation with Professor Eugene of UCLA Law School. Does
the court look like it might send the case back
to the Fifth Circuit? And what about the other eighteen
states that have passed age verification laws since the beginning
of twenty twenty three. Texas is one of nineteen states
(26:35):
with laws aimed at blocking young children and teenagers from
viewing pornography online by requiring age verification. I've been talking
to Professor Eugene Volok of UCLA Law School. Did it
seem to you that most of the justices were leaning
toward the rational basis test rather than strict scrutiny.
Speaker 4 (26:58):
Well, so I say that I think quite a few
of the justices were open to strict scrutiny in part
because Ashbrot the ACLU two did apply that. And then
there are other cases not quite a square of the
out point, but dealing with technologically distributed pornography and electronically
distributed pornography, which also applied to strict scrutiny. The real
(27:21):
question is what does that end up meaning? Because even
the challenger said, well, in this situation, some laws, some
regulations might pass strict screwed. It's just that the particular
Texas law doesn't, partly for technical reasons having to do
the law, and partly because filtering is the less restrictive
of one thing. For example, that the challenger said, it's
(27:43):
filtering is actually in some respects more effective because filtering
can deal with foreign point sites. Was the Texas law
would have no effect on foreign porn sites if the
foreign company has no access in Texas and olympolaes in Texas.
So the challengers say this particular though would be struck down.
I think majority of the court would say at least
(28:04):
certain laws should be upheld. Majority of the court also
seem to be open to some kind of online age verification.
So I think their view was states probably have the
authority to require some kinds of age verification as a
backstop to parent level filtering and device level filtering. That
(28:25):
they could try to wear belt and suspenders in this
kind of situation in order to provide more effectiveness of
shielding biners, but maybe not this particular law. Maybe a
law would have to provide more privately protective age verification options.
For example. There's also sounded like some sympathy amongst some
(28:47):
justices to kind of punt a little bit to say
the right standard districts could me, and we're going to
send it back to the Fifth Circuit, to the Federal
appellate Court. We're that uphels the law to reconsider the
issue and to see whether the district court was right
in saying that, well, the law failed strict scrutiny, or
maybe this di Circus might say no, the law actually
(29:09):
passes strict scrutiny, or do something in between. So that
would only require the court to choose the strict scrutiny
approach versus the rational basis approach and then leave application
of the standard to lower courts. Justices sometimes like to
do that, especially when the case looks really complicated and
really factly as well.
Speaker 3 (29:30):
So you think that it's most likely that they're going
to remand this to the Fifth Circuit.
Speaker 4 (29:37):
Oh, I never make predictions about the future, and especially
about the future on the court. Sometimes I make predictions.
But here the argument, I don't think kind of gave
a clear answer as a bad question. Some justices were
open to that. You know, if I had to bet,
I would probably say that they would say strict scrutiny applies.
(30:00):
But whether they would just say that and leave it
entirely to the Fifth Circuit of provide more guidance to
the Fifth Circuit, that is a harder question.
Speaker 3 (30:09):
And the Fifth Circuit applied rational basis.
Speaker 4 (30:13):
So applied rational basis. But in practice, here's what it means.
It's said one thought. We see that the law targets
only obscenis to minors materials and is targeted as shielding
material for miners. At that point, the state has very
broad authorities to decide how to shield miners. It doesn't
(30:33):
have to show that it's using the least restrictive means
doesn't have to worry too much about burden non adults.
It's okay. So it's not like rational basis in the
sense any speech restriction goes, or any speech restriction aimed
that sexually the material goes. The state has to limit
itself to this material that is harmful to minors or
obscenis to minors. But once it limits itself to that,
(30:57):
then the Fifth Circuits said, there's no reason of the
ex particularly demanding about looking at the particular means that
the state is using in order to enforce that ginsbergby
New York obscenist to my understand, so it looks to
me like probably most justices are going to say, no,
(31:18):
that's not the standard we've used for the Internet in
cases like Ashcok the acteal New too. Well, whether they
will say much more than that will say much more
about what it takes to actually uphold the law under
strict scrutiny. That is the harder, harder thing to predict.
Speaker 3 (31:34):
Texas is one of nineteen states that have these age
verification laws. So how would this apply to the other
states or would it be fact based?
Speaker 4 (31:46):
Well, it would be both. If the court says, well,
the right standard is, even if you're aiming at shielding children,
you've got to show that this is the means that
is least restrictive of adult access. That strict scrutiny standard
fly to all stacks. On the other end of the
court says nope, once you're shielding children at least unless
(32:06):
the burden and adults is extraordinarily.
Speaker 1 (32:08):
High, well than in that case, they're going uphold it.
That too would apply to other sticks. On the other hand,
are particular features of this particular law. So for example,
this law, the state says, well, we are protecting privacy
and diminishing the chilling effect on adults by essentially for
visiting age verification or sites to do age verification from.
Speaker 4 (32:30):
Retaining the data. But the challengers say nothing in the
law says that you can't give away the data or
sell the data. So long as you don't retain that
you can sell it to someone else. Well, that's a
feature that I don't know how many AVAIL states have,
but I imagine some of them don't have this feature. So
the court focuses on that and says, well, that makes
(32:52):
this law constitutional because either sales trips food new or
because it's a too grave a burden on adult access. Well,
that might have very little event on other state laws
that don't have this peculiar feature.
Speaker 3 (33:05):
When they were discussing less restrictive alternatives besides content filtering, which,
as you mentioned a lot of the justices I think
Amy Cony Barrett said from our own experience, it doesn't work.
What other ways are there to do this? Are there
other technical ways that the justices might not be familiar.
Speaker 4 (33:26):
With, So I'm not sure how unfamiliar they are with them,
but here are a few that that came up. What
is the possibility of requiring age verification but using tools
that are especially privacy protective. So the possibility, for example,
of using some sort of biometric evaluations to kind of
(33:49):
look at the person's face, and then without keeping that data,
it could just say well, this person looks old or
looks old enough. Of course, there there'll be some people
who are borderlined, but at least for most people, it
would provide less of a burden on privacy than, for example,
requiring someone to show a government ID, or there's talk
of possibly looking in people's hands altho, in the question
(34:11):
is how do you avoid people thinking that so there
parently are sites that at least build themselves as providing
really secure and privacy protective age verification, and one question
was whether using those sites would comply with Texas law.
Maybe Texas law doesn't allow those sites to be used,
but maybe less restrictive law would. Another argument that the
(34:34):
challenger said is well Texas could require that devices sold
in Texas have built in filtering as an option to
be sure as an option to be used by the parents,
So all the parents would have to do for free.
They wouldn't have to configure some new software downloaded by
its figuring how to operate. All that have to do
is that have to select the parental control options. So
(34:57):
at that point filtering would be turned on and then
they could tune it if they wanted to their preferences.
That the challengers said would make for a much lesser
burden on adults, because if an adult wants to act
the form that they could just buy it or have
their device which is set up without the filtering, whereas
if a parent wants to shield the child, then the
(35:18):
parent can just set the right setting. On the other hand,
some justices might be skeptical about that because that might
be seen as less effective because it doesn't deal with
legacy device. There's lots of computers and phones people as
that that would have been before the date before such
a mandate. Also doesn't deal with people accessing things on
(35:39):
their friends the computers in the line. So those are
the kinds of things that I think the justices might
very well want to leave to lower courts to decide,
not because it's technologically so sophisticated, but just because there's
going to be a lot of factual dispute there and
often it may make sense for lower courts to look
at that more closely.
Speaker 3 (36:00):
It's a pleasure to have you on, Eugene, thanks so much.
That's Professor Eugene Vollik of UCLA Law School. And that's
it for this edition of the Bloomberg Law Show. Remember
you can always get the latest legal news on our
Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify,
and at www dot Bloomberg dot com, slash podcast Slash Law,
(36:22):
and remember to tune into The Bloomberg Law Show every
weeknight at ten pm Wall Street Time. I'm June Grosso,
and you're listening to Bloomberg
This is Bloomberg Law with June Grossel from Bloomberg Radio.
Speaker 2 (00:08):
You know how beautiful the inauguration is. You're down and
you're walking up these beautiful stairs to capital, and everything's
so beautiful. As I'm walking up, I'll be signing about
four or five different documents. I'm not going to wait
to get to The.
Speaker 3 (00:23):
Executive actions are common on day one of a presidency,
but Donald Trump is planning an uncommon day one by
issuing around one hundred executive orders to cover everything from
closing the southern border and ending birthright citizenship to undoing
(00:44):
Biden's climate policies and rolling back the rights of transgender Americans.
Speaker 4 (00:50):
With a stroke of.
Speaker 5 (00:50):
My pen on day one, We're going to stop the
transgender lunacy, and I will sign executive orders to end
child sexual mutilation, get transgender out of the military and
out of our elementary schools and middle schools.
Speaker 4 (01:11):
And high school.
Speaker 3 (01:14):
It will be a first day shock and all campaign.
Some of the executive orders may be significant, but others
will be merely symbolic, and many will be challenged in
court and take months, if not years, of litigation. Joining
me is constitutional law expert David super a professor at
Georgetown Law, David explain what an executive order is and
(01:38):
the power it carries.
Speaker 1 (01:40):
I'm an executive order is simply a formal directive from
the President, as head of the executive Branch, to any
or all of his subordinates. It can be something that
is called for by an Act of Congress. It can
be issued under or the president's constitutional authorities as commander
(02:04):
in chief and as head of the executive department of government.
Speaker 3 (02:09):
Are there areas or things that the president can't do
by executive order?
Speaker 4 (02:15):
Yeah.
Speaker 1 (02:15):
The president can't do anything that he doesn't have the
authority to do, either from the Constitution or congrus. So
he can't amend or repeal laws. He can't abridge people's
First Amendment or do process freedoms. He can't exercise powers
that are not his.
Speaker 3 (02:35):
Do most executive orders require agencies to perform actions.
Speaker 1 (02:41):
For the most part, yes, because most laws delegate authority
to agencies. So an executive order is the President publicly
telling one or more agencies how it wants them to
use their delegated powers. Very few matters, not none, but
(03:01):
very few are delegated directly to the president.
Speaker 3 (03:06):
So then when an agency is ordered by executive order
to do something, they have to go through the Administrative
Procedure Act and the rules process, so it can't be
done immediately.
Speaker 1 (03:17):
No, and the agency can't do more than the law
allows it to do. So the president can direct the
agency to do six things, but if the agency only
has legal authority to do four of them, then that's
all that's ever going to happen.
Speaker 3 (03:34):
So Donald Trump says that he is going to issue
one hundred executive orders on day one, and to put
that into context, so far as of Monday, President Biden
has issued one hundred and fifty five executive orders over
four years. Do you think that's to create shock and awe?
Speaker 1 (03:54):
Well, I think that's the idea. There've been a number
of statements from the President and from members of his
team suggesting that they intend to have a shock in
law entrance.
Speaker 3 (04:07):
Immigration enforcement is and always has been Trump's number one priority.
He has said that on day one he's going to
close the US southern border, reinstate his travel bands, and
suspend refugee admissions into the country. Can he do those
things by executive order?
Speaker 1 (04:29):
He can do things that sound like that. And if
the goal of this is publicity, then perhaps he can
get the publicity he is seeking. But there's very extensive
laws about the ability to limit travel, about refugees' ability
(04:52):
to seek to come to this country, and a number
of the things in that area that have been discussed
publicly probably illegal.
Speaker 3 (05:01):
The Supreme Court did uphold his Muslim travel ban, but
circumstances have changed since then. So is there any guarantee
the Supreme Court would uphold another travel ban.
Speaker 1 (05:13):
There's no guarantee. That opinion was fairly deferential to the president,
but it didn't suggest that the president had a complete
blank check. So if the president justifies a travel ban
on factually sound and legally premiscipal grounds, it'll be upheld.
But remember, the travel ban that got to the Supreme
(05:36):
Court was not the first one or even the second
one that he issued. His first few travel bans were
so blatantly unlawful that they lost in lower courts, and
his Justice Department sensibly concluded there was no point in appealing.
Speaker 3 (05:54):
Are courts generally reluctant to stay or to overturn and
executive order? Do they give a lot of deference to
the president.
Speaker 1 (06:04):
I don't know that that's generally true. Executive orders often
don't do anything that could be challenged in court. An
executive order might, for example, say that agencies should take
the interests of veterans into account in implementing various authorities
under their control. That's not challengeable because it doesn't to
(06:27):
adversely affect anybody. If the President tries to take authority
that isn't his, courts feel a need to intervene to
preserve the separation of powers.
Speaker 3 (06:39):
Immigration advocacy groups, environmental groups, and some state ags are
sort of gearing up to challenge some of these orders
that he's promised, and another of his pledges is to
end birthright citizenship on day one. That's something that surely
(06:59):
will be challenged.
Speaker 1 (07:01):
Well, that's an example of an executive order that has
no legal authority taking a power that isn't his. That's
resolved by Section one of the fourteenth Amendment to the Constitution.
So neither the President nor Congress can change that. We
could only change that if we amended the constitution.
Speaker 3 (07:19):
He said, with the stroke of my pen on day one,
we're going to stop the transgender lunacy, that he'll sign
executive orders to get transgender people out of the military.
And out of our elementary schools and middle schools and
high schools well. He said, the official policy of the
US government will be that there are only two genders,
(07:42):
male and female. What can he do to restrict transgender
rights as he wants to.
Speaker 1 (07:50):
The most significant thing that he can do, and something
he's already been doing, is feeding the flaims of bigotry,
of hostility, and hatred. I don't think there's any question
that a significant number of transgender children will be driven
into depression and some to suicide as a result of
this hateful rhetoric. That's clearly within his power. Controlling what
(08:13):
happens in schools that are run by state and local
governments is not within his power. What about the military,
The president has considerable authority as commander in chief to
take steps to make the military more effective for the country.
Whether the courts would consider purging people who are serving
(08:36):
in the military honorably and have shown loyalty and proficiency
is another question.
Speaker 3 (08:42):
Now, he's also going to do something that is reminiscent
of what he did in his last term. He said
he's going to sign an executive order directing every federal
agency to immediately remove every single burdensome regulation driving up
the cost of goods. And he said that for every
regulation that a federal agency wants to put into effect,
(09:05):
it has to eliminate ten regulations.
Speaker 1 (09:09):
Well, it makes for good headlines, but it's pretty overtly illegal.
Each of the statutes that federal agencies implement have their
own legal criteria, and an agency should issue the regulations
the statute directs it to issue, and should not issue
regulations the statutes don't authorize. It is not a legal
(09:32):
or rational basis for deregulating that you needed to regulate
something else. He can't do that, And if an agency
tries to do repeals of the kind he's talking about,
those will surely be challenged and struck down in court.
In addition, it's very hard to tell when a regulation
(09:52):
is creating a burden and when it is removing a burden.
If you allow the airlines to change their schedules at
the last moment to lose baggage, you can say you're
reducing burdens on them, but you're increasing burdens on me
as a traveler.
Speaker 3 (10:12):
I mean, ken an agency just say we're getting rid
of that regulation, or do they have to put something
else in its place.
Speaker 1 (10:19):
It depends entirely on what the underlying statute provides. If
the statute says that you will regulate chemicals that are
determined to be hazardous to workers, then they can't simply
repeal a regulation with such a chemical unless they can
show scientific evidence that that chemical isn't hazardous to workers.
(10:44):
It's not up to their choice whether to regulate a
hazardous chemical once that's been identified under the statute, so
they could perhaps change the regulation, but even there they'd
need a scientific basis.
Speaker 3 (10:58):
So out of the seventy seven major rules in his
first administration that were challenged, Trump won thirty one point
two percent of the time, according to an analysis by
NYU Law School's Institute for Policy Integrity. What difference, if any,
does it make that in his first term, the Chevron
(11:19):
doctrine was in place, But in his second term there
is no Chevron doctrine, so that deference to agencies with
ambiguous rules is gone. Would that make any difference?
Speaker 1 (11:30):
That'll mean he'll lose more. The Chevron Doctrine was an
enormous help to President Trump. In his first term, a
number of very questionable legal rulings were sustained on that basis.
He doesn't have that to hide behind anymore, and if
his new rules are as badly resented as the ones
in his first term, he'll be very lucky to get
(11:53):
even close to thirty one percent success.
Speaker 3 (11:56):
He has talked about day one a lot in the
last few months, and he's said, look, I can undo
almost everything Biden did through executive order, and on day
one much of that will be undone. A president can
revoke the executive orders of his predecessor, right, although I
don't know how can revoke them all in one fail swoop.
Speaker 1 (12:18):
The president generally can revoke the predecessor's executive orders, and
he can sign a new executive order with a list
of fire executive orders that are ascended. If he tries
that with too broad a brush, he'll probably end up
doing some things that are embarrassing, repealing recognitions of this
(12:39):
or that agency or state or individual for heroic or
public minded service. But he can repeal just about any
executive order he wants to, unless there is some statute
that requires that executive order to stay in place, which
(12:59):
they're rarely is.
Speaker 3 (13:00):
We assume he's going to rely on executive orders a
lot has there been another president that relied on executive
orders so much?
Speaker 1 (13:10):
No, there have been presidents who've issued very important executive orders.
Certainly President Reagan did, President Clinton did, and they did
change the government with those, but they were targeted at
particular things that were within their authority and particular things
that the government could actually do.
Speaker 3 (13:31):
Congress could always pass a law that refutes the executive order.
But with the Congress the way it is, both houses
controlled by Republicans, does it seem like there's going to
be any sort of restraint on Trump.
Speaker 1 (13:47):
Well, there's a great deal of restraint from laws that
are already on the books in areas where he has
a great deal of discretion. I agree that this Congress
is unlikely to narrow that, but in many he does
not have broad discretion, and we don't need new laws
to impose restraints because we have existing ones.
Speaker 3 (14:08):
Do you think his aides learned by their experience with
executive orders the first time around?
Speaker 1 (14:14):
I don't know. There are certainly some people that are
coming back. Mister Vote is going to resume his seat
as director of OMB if he's confirmed by the Senate.
But a great many of them are different, and I
do see evidence of repeating mistakes that were made in
the first Trump administration.
Speaker 3 (14:35):
So I see a lot of litigation ahead in the
next four years. Thanks so much, David. That's Professor David
Super of Georgetown Law coming up next on the Bloomberg
Law Show. Supreme Court Justice is grappled today with a
first amendment challenge to a Texas law requiring age verification
(14:55):
to access porn sites.
Speaker 6 (14:58):
Sable, of course, was thirty five years ago. In that period,
the technological access to pornography obviously has exploded, right. I mean,
it's very difficult for fifteen year olds whatever to get
access to the type of things that is available with
the push of a button today. And the nature of
(15:20):
the pornography I think has also changed in those thirty
five years.
Speaker 3 (15:26):
Chief Justice John Roberts said the availability of pornography has
exploded with technology. Since the Court lasts grapple with restrictions
on obscene material, and it may require the Justices to
rethink the standard of scrutiny. The Court is deciding a
first amendment challenge to a Texas law that requires porn
(15:49):
sites to verify the age of users. An industry trade
group contends the law violates the privacy rights of adults,
and the Fifth Circuit Court of Appeals should have looked
at the law under a strict scrutiny standard that would
require Texas to have a compelling interest it can achieve
in the least restrictive way. However, many of the justices
(16:12):
seem skeptical that other less restrictive alternatives like content filtering,
would protect kids. Justice Amy Cony Barrett, who has seven children,
said she had first hand experience.
Speaker 7 (16:25):
I mean, kids can get online porn through gaming systems, tablets, phones, computers.
Let me just say that content filtering for all those
different devices, I can say from personal experience, is difficult
to keep up with. So and I think that the
explosion of addiction in to online porn has shown that
content filtering isn't working.
Speaker 3 (16:47):
And there's always the problem of parents and technology, as
Justice Samuel A. Leito pointed out to the attorney for
the industry trade group Derek Schaffer.
Speaker 1 (16:57):
Mister Schaffer, you know a lot of parents who are
more tech savvy than their fifteen year old children. Oh,
Justice Leto, it's a fair question, and I don't know that.
I think kids may be ahead of parents, but that's
a problem with this law. It's not solving for the fact.
Speaker 4 (17:13):
Now it's a problem with filtering.
Speaker 3 (17:15):
Isn't it joining me? Is First Amendment expert Eugene Volk,
a professor at UCLA Law School, Eugene Justice Sonia so
to mayor, So, the issue is the level of scrutiny
to be applied to the law. Is that the real
issue in the case.
Speaker 4 (17:31):
It is an issue. But if in some respects a
matter of legal labeling, there's a deeper issue behind. If
you just step back, we can think of two kinds
of speech. One is speech that holds within a First
Amendment exception. Could be true threats of criminal conduct, could
be incitement to christ, could be certain kinds of libel.
(17:53):
It could be obscenity in the sense of hardcore pornography
that is illegal for everybody. That kind of speech hits
within a First Tomment exception. It's constitutionally unprotected once you
apply the right test to determine whether it's fits into
one of those categories. At that point, restrictions on that
speech I oversimplify here, though, might be seen as justifiable
(18:16):
so long as there's a so called rational basis for them,
which is to say, they'll be upheld again once the
court concludes the speech is unprotected. So if there's a
law that in truth threats of illegal conduct the government
doesn't happen, then show that it's narrowly tailored to compelling interest.
There is an alternative to the law.
Speaker 2 (18:35):
What have you.
Speaker 4 (18:36):
The law is just constitutional wants it's funds to be
limited to the truth threats. Second category of speech is
all sorts of other speech, political advocacies, scientific speech, a
discussion about personal matters that is protected. If the government
wants to restrict that based on its content, it really
does have to show there's a compelling government interest. The
(18:57):
law is the least restrictive way of sin that interest.
It's a very hard.
Speaker 1 (19:01):
Stenter the show.
Speaker 4 (19:03):
But there is this third category that the Court has
recognized over the decades, and that is speech that is
unprotected for minors, so called harmful to minors or obscenis
to minors. Basically pornographic for minors or let's say unduly
pornographic therefore unacceptable to be distributed to minors, but at
(19:26):
the same time is constitutionally protected for adults. A lot
of pornography is that way. It's basically protected for adults.
But if you're trying to distribute it to minors, maybe
even seventeen year old miners, but certainly younger miners, it
is constitutionally unprotected. The question is what happens when there
are laws that limit speech within this kind of weird
(19:51):
intermediate category and at the same time those laws pretty
much invariably also burden speech that is a at adults
or there will be received by adults, because there needs
to be a way of sorting the miners for adults,
and those ways might interfere in some measure with adults.
So the question is how you deal with that. And
(20:12):
the court talked about various formulations you might think of
as a rational basis test for those kinds of restrictions,
or a strict scrutiny test, or some justice suggested kind
of a and the State of Texas suggests kind of
a burden based test, asking how much the law actually
does interfere with speech to adults. So those are the
(20:33):
legal formulations for are inmplating. The core question, though, is
how do you reconcile the permissibility of trying to shield
miners with the fact that any such restriction will impose
some burdens on adults and h screening will in particular
interfere in some measure with adults privacy because it might
require them to identify themselves in various ways. Those are
(20:56):
the questions that the corp was really dealing with them.
Speaker 3 (21:00):
The Fifth Circuit upheld the Texas law by relying on
a nineteen sixties case about a New York bookseller verifying
the age of customers before selling adult material. Was that
the case that they should have been relying on.
Speaker 4 (21:16):
So the problem is that the court has two precedents
that are pretty close to on point and the point
in pretty different directions. So in nineteen sixty eight, the
Supreme Court upheld in a case called Ginenberg versus New York,
upheld a law that basically said, it's the illegal to
sell certain pornographic materials that are protected for adults. It's
(21:39):
illegal to sell them to minors, and illegal to do
that if you know the person owned as a minor
or reasonably should know the person as a minor, And
one way of determining the law that whether he's going
as a minor is by carting the person by asking
to see an ID. And on the other hand, if
somebody comes in and they looked kind of borderline and
(22:00):
you don't card them, well, then you could be criminally
punished because you reasonably should have known that the person
was a miners. So people who look borderline, the law
would basically require them to show an ID.
Speaker 1 (22:12):
As a practical man.
Speaker 4 (22:13):
But then in ashcarf. The ACLU two, a two thousand
and four case, the Supreme Court struck down a law
that aimed at shielding miners on the Internet from this
kind of harmful to minors of seen as to minors
of material, and it said, well, on the Internet, there
are other alternatives that you could use that avoid the
(22:34):
burden on adults. For example filtering, so having stopped or
running on the computer that filters out certain pronographic websites
in the discretion of the computer's owner, who presumably would
be the parent. So those precedents point in opposite directions. Now,
in some sense, and probably in a substantial sense, Ashcart
(22:55):
the ACLU two seems more on points because it is
actually factually very similar to also involved Internet speech. On
the other hand, the court there was really quite tentative
and it said, well, a lot depends on fast changing technology.
Justice Brier had a distending opinion where he said, look,
filtering isn't really that effective, and the government should be
(23:17):
able to provide extra protection beyond what is provided by filtering.
And a lot of justices of today's arguments were pretty
skeptical about filtering. Their view was that it's like after
twenty extra years of experience, in twenty years extra years
of technological development. Their view was, you know, filtering when
every child has a smartphone and ex friends who have
(23:39):
smartphones and such, just isn't going to do much. So
that's why some of the justices at least seemed a
lot more open to applying, to applying Giinsburg and suggesting that, look,
this is just the online analogue of parting people as
was used with porn stores back of the day. I
suppose porn stores to use them, how if their business
(24:02):
facing competition from the internet.
Speaker 3 (24:04):
Justice score such at one point asked whether they should
try to keep the same principles for online sites as
for brick and mortar stores.
Speaker 4 (24:16):
That's right, that's right, and this is of course a
big part of the state's argument. Look, it's okay to
require ID at bricks and mortar stores. The First Amendment
applies regardless of the medium generally speaking. On the other hand,
the challengers argument is twofold. First of all, they say
what should happen is the same test should be applied
(24:38):
to both. And they say the tests should be strict
scrutiny because of the burden that the law imposes on
adult Now, the test may play out differently for different
kinds of stores. In the bricks and mortar world, there's
no filtering, right, parents can't put glasses on their children
that keeps them from being porn in the bricks and
mortar stores. But on the Internet there is still print.
(25:01):
So a law that may be the least restrictive alternative
requiring krding, maybe the least restrict of alternative is a
practical matter for bookstores and movie theaters might not be
the least restrict of alternative on the Internet. The other
thing that the challengers say is that on the Internet,
checking ID is actually more burdensome on adults because we
(25:25):
know on the Internet you put in some information, potentially
it's now available, indefinitely distributable, indefinitely hackable, and as a result,
people are going to be much more worried about giving
their identifying information in a way that ties them to
internet porn than in the old days, where look, you
show the ide, nobody's going to write down your name,
(25:48):
or your driver's license, member or what have you. Most
you might worry that the bookstore clerk is going to
remember and gossip to someone about it, but there will
be substantial professional reasons for so. The argument that these
challengers are making is, yes, let's apply the same standards.
It's just those standards end up playing out differently as
(26:10):
the different technologies because the facts are different to the
different technologies.
Speaker 3 (26:14):
Coming up next on the Bloomberg Law Show, I'll continue
this conversation with Professor Eugene of UCLA Law School. Does
the court look like it might send the case back
to the Fifth Circuit? And what about the other eighteen
states that have passed age verification laws since the beginning
of twenty twenty three. Texas is one of nineteen states
(26:35):
with laws aimed at blocking young children and teenagers from
viewing pornography online by requiring age verification. I've been talking
to Professor Eugene Volok of UCLA Law School. Did it
seem to you that most of the justices were leaning
toward the rational basis test rather than strict scrutiny.
Speaker 4 (26:58):
Well, so I say that I think quite a few
of the justices were open to strict scrutiny in part
because Ashbrot the ACLU two did apply that. And then
there are other cases not quite a square of the
out point, but dealing with technologically distributed pornography and electronically
distributed pornography, which also applied to strict scrutiny. The real
(27:21):
question is what does that end up meaning? Because even
the challenger said, well, in this situation, some laws, some
regulations might pass strict screwed. It's just that the particular
Texas law doesn't, partly for technical reasons having to do
the law, and partly because filtering is the less restrictive
of one thing. For example, that the challenger said, it's
(27:43):
filtering is actually in some respects more effective because filtering
can deal with foreign point sites. Was the Texas law
would have no effect on foreign porn sites if the
foreign company has no access in Texas and olympolaes in Texas.
So the challengers say this particular though would be struck down.
I think majority of the court would say at least
(28:04):
certain laws should be upheld. Majority of the court also
seem to be open to some kind of online age verification.
So I think their view was states probably have the
authority to require some kinds of age verification as a
backstop to parent level filtering and device level filtering. That
(28:25):
they could try to wear belt and suspenders in this
kind of situation in order to provide more effectiveness of
shielding biners, but maybe not this particular law. Maybe a
law would have to provide more privately protective age verification options.
For example. There's also sounded like some sympathy amongst some
(28:47):
justices to kind of punt a little bit to say
the right standard districts could me, and we're going to
send it back to the Fifth Circuit, to the Federal
appellate Court. We're that uphels the law to reconsider the
issue and to see whether the district court was right
in saying that, well, the law failed strict scrutiny, or
maybe this di Circus might say no, the law actually
(29:09):
passes strict scrutiny, or do something in between. So that
would only require the court to choose the strict scrutiny
approach versus the rational basis approach and then leave application
of the standard to lower courts. Justices sometimes like to
do that, especially when the case looks really complicated and
really factly as well.
Speaker 3 (29:30):
So you think that it's most likely that they're going
to remand this to the Fifth Circuit.
Speaker 4 (29:37):
Oh, I never make predictions about the future, and especially
about the future on the court. Sometimes I make predictions.
But here the argument, I don't think kind of gave
a clear answer as a bad question. Some justices were
open to that. You know, if I had to bet,
I would probably say that they would say strict scrutiny applies.
(30:00):
But whether they would just say that and leave it
entirely to the Fifth Circuit of provide more guidance to
the Fifth Circuit, that is a harder question.
Speaker 3 (30:09):
And the Fifth Circuit applied rational basis.
Speaker 4 (30:13):
So applied rational basis. But in practice, here's what it means.
It's said one thought. We see that the law targets
only obscenis to minors materials and is targeted as shielding
material for miners. At that point, the state has very
broad authorities to decide how to shield miners. It doesn't
(30:33):
have to show that it's using the least restrictive means
doesn't have to worry too much about burden non adults.
It's okay. So it's not like rational basis in the
sense any speech restriction goes, or any speech restriction aimed
that sexually the material goes. The state has to limit
itself to this material that is harmful to minors or
obscenis to minors. But once it limits itself to that,
(30:57):
then the Fifth Circuits said, there's no reason of the
ex particularly demanding about looking at the particular means that
the state is using in order to enforce that ginsbergby
New York obscenist to my understand, so it looks to
me like probably most justices are going to say, no,
(31:18):
that's not the standard we've used for the Internet in
cases like Ashcok the acteal New too. Well, whether they
will say much more than that will say much more
about what it takes to actually uphold the law under
strict scrutiny. That is the harder, harder thing to predict.
Speaker 3 (31:34):
Texas is one of nineteen states that have these age
verification laws. So how would this apply to the other
states or would it be fact based?
Speaker 4 (31:46):
Well, it would be both. If the court says, well,
the right standard is, even if you're aiming at shielding children,
you've got to show that this is the means that
is least restrictive of adult access. That strict scrutiny standard
fly to all stacks. On the other end of the
court says nope, once you're shielding children at least unless
(32:06):
the burden and adults is extraordinarily.
Speaker 1 (32:08):
High, well than in that case, they're going uphold it.
That too would apply to other sticks. On the other hand,
are particular features of this particular law. So for example,
this law, the state says, well, we are protecting privacy
and diminishing the chilling effect on adults by essentially for
visiting age verification or sites to do age verification from.
Speaker 4 (32:30):
Retaining the data. But the challengers say nothing in the
law says that you can't give away the data or
sell the data. So long as you don't retain that
you can sell it to someone else. Well, that's a
feature that I don't know how many AVAIL states have,
but I imagine some of them don't have this feature. So
the court focuses on that and says, well, that makes
(32:52):
this law constitutional because either sales trips food new or
because it's a too grave a burden on adult access. Well,
that might have very little event on other state laws
that don't have this peculiar feature.
Speaker 3 (33:05):
When they were discussing less restrictive alternatives besides content filtering, which,
as you mentioned a lot of the justices I think
Amy Cony Barrett said from our own experience, it doesn't work.
What other ways are there to do this? Are there
other technical ways that the justices might not be familiar.
Speaker 4 (33:26):
With, So I'm not sure how unfamiliar they are with them,
but here are a few that that came up. What
is the possibility of requiring age verification but using tools
that are especially privacy protective. So the possibility, for example,
of using some sort of biometric evaluations to kind of
(33:49):
look at the person's face, and then without keeping that data,
it could just say well, this person looks old or
looks old enough. Of course, there there'll be some people
who are borderlined, but at least for most people, it
would provide less of a burden on privacy than, for example,
requiring someone to show a government ID, or there's talk
of possibly looking in people's hands altho, in the question
(34:11):
is how do you avoid people thinking that so there
parently are sites that at least build themselves as providing
really secure and privacy protective age verification, and one question
was whether using those sites would comply with Texas law.
Maybe Texas law doesn't allow those sites to be used,
but maybe less restrictive law would. Another argument that the
(34:34):
challenger said is well Texas could require that devices sold
in Texas have built in filtering as an option to
be sure as an option to be used by the parents,
So all the parents would have to do for free.
They wouldn't have to configure some new software downloaded by
its figuring how to operate. All that have to do
is that have to select the parental control options. So
(34:57):
at that point filtering would be turned on and then
they could tune it if they wanted to their preferences.
That the challengers said would make for a much lesser
burden on adults, because if an adult wants to act
the form that they could just buy it or have
their device which is set up without the filtering, whereas
if a parent wants to shield the child, then the
(35:18):
parent can just set the right setting. On the other hand,
some justices might be skeptical about that because that might
be seen as less effective because it doesn't deal with
legacy device. There's lots of computers and phones people as
that that would have been before the date before such
a mandate. Also doesn't deal with people accessing things on
(35:39):
their friends the computers in the line. So those are
the kinds of things that I think the justices might
very well want to leave to lower courts to decide,
not because it's technologically so sophisticated, but just because there's
going to be a lot of factual dispute there and
often it may make sense for lower courts to look
at that more closely.
Speaker 3 (36:00):
It's a pleasure to have you on, Eugene, thanks so much.
That's Professor Eugene Vollik of UCLA Law School. And that's
it for this edition of the Bloomberg Law Show. Remember
you can always get the latest legal news on our
Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify,
and at www dot Bloomberg dot com, slash podcast Slash Law,
(36:22):
and remember to tune into The Bloomberg Law Show every
weeknight at ten pm Wall Street Time. I'm June Grosso,
and you're listening to Bloomberg
Popular Podcasts
Crime Junkie
Does hearing about a true crime case always leave you scouring the internet for the truth behind the story? Dive into your next mystery with Crime Junkie. Every Monday, join your host Ashley Flowers as she unravels all the details of infamous and underreported true crime cases with her best friend Brit Prawat. From cold cases to missing persons and heroes in our community who seek justice, Crime Junkie is your destination for theories and stories you won’t hear anywhere else. Whether you're a seasoned true crime enthusiast or new to the genre, you'll find yourself on the edge of your seat awaiting a new episode every Monday. If you can never get enough true crime... Congratulations, you’ve found your people. Follow to join a community of Crime Junkies! Crime Junkie is presented by audiochuck Media Company.
24/7 News: The Latest
The latest news in 4 minutes updated every hour, every day.
Stuff You Should Know
If you've ever wanted to know about champagne, satanism, the Stonewall Uprising, chaos theory, LSD, El Nino, true crime and Rosa Parks, then look no further. Josh and Chuck have you covered.