This is Bloomberg Law with June Grossel from Bloomberg Radio.

This is Bloomberg Law with June Grossel from Bloomberg Radio.

The Court is minn and a crisis of ethics. These scandals of obvy the justices have caused public opinion to question the Court's fairness and independence.

The Court is minn and a crisis of ethics. These scandals of obvy the justices have caused public opinion to question the Court's fairness and independence.

After a series of ethical missteps by justices and controversial decisions like overturning the right to abortion and granting broad presidential immunity, only thirty five percent of Americans have confidence in the courts, a record low and a steep drop of twenty four points over the last four years. According to a Gallop poll. The Court has more than fifty cases on its dock at this term, including some addressing contentious issues like transgender care for minors, reverse discrimination, ghost guns, and the TikTok ban. Joining me to discuss the oral arguments coming up this year is constitutional law expert Harold cr a professor at the Chicago Kent College of Law. How the Court seems to love First Amendment cases, and there are three coming up this year, the ban on TikTok, age verification for pornography sites, and tax exemptions for religious organizations. Let's start with the ban on TikTok, which will be the first oral arguments of the year next Friday. The Supreme Court is hearing this on an expedited basis because the ban goes into effect on January fifteenth. Tell us about TikTok's First Amendment claims well.

After a series of ethical missteps by justices and controversial decisions like overturning the right to abortion and granting broad presidential immunity, only thirty five percent of Americans have confidence in the courts, a record low and a steep drop of twenty four points over the last four years. According to a Gallop poll. The Court has more than fifty cases on its dock at this term, including some addressing contentious issues like transgender care for minors, reverse discrimination, ghost guns, and the TikTok ban. Joining me to discuss the oral arguments coming up this year is constitutional law expert Harold cr a professor at the Chicago Kent College of Law. How the Court seems to love First Amendment cases, and there are three coming up this year, the ban on TikTok, age verification for pornography sites, and tax exemptions for religious organizations. Let's start with the ban on TikTok, which will be the first oral arguments of the year next Friday. The Supreme Court is hearing this on an expedited basis because the ban goes into effect on January fifteenth. Tell us about TikTok's First Amendment claims well.

Congress in early twenty twenty four passed the law requiring TikTok basically to be divested from its Chinese parent Fighte Dance by January nineteenth, twenty twenty five. And the divestiture requirement has been challenged under the First Amendment and it is far from privilege, and so the Court did decide to take an emergency appeal. So it's not exactly on the merits. It would be an emergency appeal about whether or not they're so convinced that the First Amendment issues are substantial or not that they would give an injunction against the statute to get rid of the January nineteenth deadline. So, obviously, TikTok is incredibly popular in the United States, and the fear that led Congress to order the divestiture is the fact that there is not only a Chinese parent, but the Chinese parent here can collect so much information about one hundred million users or so on TikTok and then change the algorithms by which people see information and through doing that, influence America in a way that is more pro Chinese. There's been no evidence that by dancing, TikTok has done this, but it's certainly, I think well accepted that they could if they wanted to. So that's what led Congress to the divestiture. But that raises huge First Amendment questions because it is picking out one particular social media platform and saying that there can no longer be free expression in that venue because of the fear of the Chinese influence. So it really raises a very important, but a very novel First Amendment claim, and that's what will be heard January tenth in order to make sure there's enough time for the Court to act before January nineteenth if they are so inclined.

Congress in early twenty twenty four passed the law requiring TikTok basically to be divested from its Chinese parent Fighte Dance by January nineteenth, twenty twenty five. And the divestiture requirement has been challenged under the First Amendment and it is far from privilege, and so the Court did decide to take an emergency appeal. So it's not exactly on the merits. It would be an emergency appeal about whether or not they're so convinced that the First Amendment issues are substantial or not that they would give an injunction against the statute to get rid of the January nineteenth deadline. So, obviously, TikTok is incredibly popular in the United States, and the fear that led Congress to order the divestiture is the fact that there is not only a Chinese parent, but the Chinese parent here can collect so much information about one hundred million users or so on TikTok and then change the algorithms by which people see information and through doing that, influence America in a way that is more pro Chinese. There's been no evidence that by dancing, TikTok has done this, but it's certainly, I think well accepted that they could if they wanted to. So that's what led Congress to the divestiture. But that raises huge First Amendment questions because it is picking out one particular social media platform and saying that there can no longer be free expression in that venue because of the fear of the Chinese influence. So it really raises a very important, but a very novel First Amendment claim, and that's what will be heard January tenth in order to make sure there's enough time for the Court to act before January nineteenth if they are so inclined.

During his campaign, President elect Donald Trump express support for TikTok, saying he got billions of views on the platform.

During his campaign, President elect Donald Trump express support for TikTok, saying he got billions of views on the platform.

They brought me a chart and it was a record, and it was so beautiful to see. And as I looked at it, I said, maybe we got to keep this sucker around a little while.

They brought me a chart and it was a record, and it was so beautiful to see. And as I looked at it, I said, maybe we got to keep this sucker around a little while.

And Trump put himself in the middle of this by asking the Supreme Court to stay the law without taking a stance on whether it's unconstitutional. His lawyer, John Sower, the future Uslicitor General, wrote, President Trump alone possesses the consummate deal making expertise, the electoral mandate, and the political will to negotiate a resolution to save the platform while addressing the national security concerns expressed by the government. It's unprecedented to have a future president intervene in a case before the Court before he takes office to try to counteract what the current president has done.

And Trump put himself in the middle of this by asking the Supreme Court to stay the law without taking a stance on whether it's unconstitutional. His lawyer, John Sower, the future Uslicitor General, wrote, President Trump alone possesses the consummate deal making expertise, the electoral mandate, and the political will to negotiate a resolution to save the platform while addressing the national security concerns expressed by the government. It's unprecedented to have a future president intervene in a case before the Court before he takes office to try to counteract what the current president has done.

So what's even more amazing about that filing is that it raises a presidential power issue under Article two that has never been discussed in the Court before, which is what about the Article to interests of a president elect? Because what President Trump has done, in a kind of rambling filing is suggests that his progatives as a future president should be preserved under Article two by deciding to stay the divestiture date of January nineteenth. We've just never had a case on the powers of a president elect, and President Trump's filing does raise the issue. It's a can of worms that has not been opened, but it may be opened by the Supreme Court. We'll have to see the course of the Court doesn't have to reach that in deciding whether to stay the case or not. But it's a fascinating stub issue.

So what's even more amazing about that filing is that it raises a presidential power issue under Article two that has never been discussed in the Court before, which is what about the Article to interests of a president elect? Because what President Trump has done, in a kind of rambling filing is suggests that his progatives as a future president should be preserved under Article two by deciding to stay the divestiture date of January nineteenth. We've just never had a case on the powers of a president elect, and President Trump's filing does raise the issue. It's a can of worms that has not been opened, but it may be opened by the Supreme Court. We'll have to see the course of the Court doesn't have to reach that in deciding whether to stay the case or not. But it's a fascinating stub issue.

Well, we were all surprised when the Court expanded presidential immunity from criminal prosecution. So I suppose anything is possible.

Well, we were all surprised when the Court expanded presidential immunity from criminal prosecution. So I suppose anything is possible.

Anything is possible. And you know, as a political matter, President Trump's submission makes some sense because what the Court does by delaying or not delaying the deadline on January nineteenth, will have an impact on his presidency. And so there is absolutely more than a kernel of truth in what President Trump has stated.

Anything is possible. And you know, as a political matter, President Trump's submission makes some sense because what the Court does by delaying or not delaying the deadline on January nineteenth, will have an impact on his presidency. And so there is absolutely more than a kernel of truth in what President Trump has stated.

And for once, we won't have to wait months and months for the Justices to make a decision. The Court will have to rule in one week's time to beat that January nineteenth deadline. Now, on January fifteenth, the Justices are going to hear arguments in a case challenging a Texas law that requires porn sites to verify the ages of users. Industry trade groups contend that the law violates the constitutional rights of adults. Tell us about their challenge.

And for once, we won't have to wait months and months for the Justices to make a decision. The Court will have to rule in one week's time to beat that January nineteenth deadline. Now, on January fifteenth, the Justices are going to hear arguments in a case challenging a Texas law that requires porn sites to verify the ages of users. Industry trade groups contend that the law violates the constitutional rights of adults. Tell us about their challenge.

They have two general First Amendment claims. I think they're quite substantial. The first is more of a doctrinal one. The court below used a kind of rational basis test in order to assess the legitimacy of this statute in terms of protecting minors as opposed to a more demanding scrutiny test, and if their strict scrutiny had been afforded as it has been afforded to other similar kinds of age restrictions in statutes on first amendment grounds, that then statute probably would be struck down. So the first challenge is simply did the court below use the wrong standard of scrutiny, in which case the court might then just remanded back for another go round with the fifth circuit. But the second issue is more predictable, which is, if you have age verification on a statute and you require adults to put in you know, whether it's driver's licenses or other proof of age, you will ter people from going to that site for fear of privacy, invasions, for fear of manipulation, et cetera. So there will be a diminution in free expression by having an age verification on this kind of site. And you know, the way the statute is crafted, it applies to any site which has at least a third of its material which may be distasteful or have sexual content which is inappropriate for children. Well, how do you determine that if you have artworks on display, or if you have some kind of erotic poetry, And so there may be just a deterrence of speech by websites having to self edit for fear of reaching this one third threshold, which is very hard to ascertain. So there is a Supreme Court case almost on point of about twenty years ago. It looked at the Shot Online Privacy Act and it had an age verification in it, and it was struck down as unconstitutional and never reenacted by Congress. And I would predict that the Texas stato will be held to be on a constitutional as well, particularly if the Heidens standard of scrutiny is required by the court.

They have two general First Amendment claims. I think they're quite substantial. The first is more of a doctrinal one. The court below used a kind of rational basis test in order to assess the legitimacy of this statute in terms of protecting minors as opposed to a more demanding scrutiny test, and if their strict scrutiny had been afforded as it has been afforded to other similar kinds of age restrictions in statutes on first amendment grounds, that then statute probably would be struck down. So the first challenge is simply did the court below use the wrong standard of scrutiny, in which case the court might then just remanded back for another go round with the fifth circuit. But the second issue is more predictable, which is, if you have age verification on a statute and you require adults to put in you know, whether it's driver's licenses or other proof of age, you will ter people from going to that site for fear of privacy, invasions, for fear of manipulation, et cetera. So there will be a diminution in free expression by having an age verification on this kind of site. And you know, the way the statute is crafted, it applies to any site which has at least a third of its material which may be distasteful or have sexual content which is inappropriate for children. Well, how do you determine that if you have artworks on display, or if you have some kind of erotic poetry, And so there may be just a deterrence of speech by websites having to self edit for fear of reaching this one third threshold, which is very hard to ascertain. So there is a Supreme Court case almost on point of about twenty years ago. It looked at the Shot Online Privacy Act and it had an age verification in it, and it was struck down as unconstitutional and never reenacted by Congress. And I would predict that the Texas stato will be held to be on a constitutional as well, particularly if the Heidens standard of scrutiny is required by the court.

As you mentioned, this is an appeal from a Fifth Circuit decision, the Fifth Circuit being the most conservative federal appellate court in the country, and every other court that reviewed similar laws has uphel the laws. Texas, of course, has defended the law, with the ag pointing to a nineteen sixty eight Supreme Court decision that said states could bar the dissemination of pornographic magazines to minors. Is that compelling?

As you mentioned, this is an appeal from a Fifth Circuit decision, the Fifth Circuit being the most conservative federal appellate court in the country, and every other court that reviewed similar laws has uphel the laws. Texas, of course, has defended the law, with the ag pointing to a nineteen sixty eight Supreme Court decision that said states could bar the dissemination of pornographic magazines to minors. Is that compelling?

Well, the difference is the websites. Right, Once, we have a whole kind of different world that can't be cordoned off into magazines delivered or magazines non delivered. We have a new First Amendment dimension that has been added to it.

Well, the difference is the websites. Right, Once, we have a whole kind of different world that can't be cordoned off into magazines delivered or magazines non delivered. We have a new First Amendment dimension that has been added to it.

Next, let's turn to a case involving the First Amendment's religion clauses. The justices will review a Wisconsin Supreme Court decision that said Catholic charities didn't qull for a religious exemption from the state's unemployment tax.

Next, let's turn to a case involving the First Amendment's religion clauses. The justices will review a Wisconsin Supreme Court decision that said Catholic charities didn't qull for a religious exemption from the state's unemployment tax.

The question here is whether you can deny a tax exemption to an arm of a religious institution even though you couldn't deny it to the religious institution itself. So the states that have these exemptions, they say religious organizations are exempt, but how do you tell if it's really a religious organization? And the language in the Wisconsin statute itself basically has to be the organizations that are operated primarily for religious purposes, and they use a test to determine not just the motivation underlying the arm of the religious entity, but also their activities. So in this case, the court said, yes, there can be great religious motivations for operating charities, and they allotted the efforts of the Catholic Church to help out people with disabilities, but they said that the actions of the religious group are secular. It's nothing about imbuing people with religious sense or devotion or anything along those lines. And the court therefore made a distinction between a motivation to create a school, for instance, or a hospital as opposed to trying to encourage religious doctrine. So that is a difficult line drawing issue, and that's the argument here of why it's unconstitutional that will mesh the courts in determining whether these activities are really religious or not. But on the other hand, as the Coupreme Court said more than twenty years ago in the Walks case, sometimes this wine drawing for tax resumption is just inevitable. You can't really get around it. You have to have some kind of test in this instance. So that's the test of motivations and activities separations. And we'll see if the court and stuff like that. It's really unclear.

The question here is whether you can deny a tax exemption to an arm of a religious institution even though you couldn't deny it to the religious institution itself. So the states that have these exemptions, they say religious organizations are exempt, but how do you tell if it's really a religious organization? And the language in the Wisconsin statute itself basically has to be the organizations that are operated primarily for religious purposes, and they use a test to determine not just the motivation underlying the arm of the religious entity, but also their activities. So in this case, the court said, yes, there can be great religious motivations for operating charities, and they allotted the efforts of the Catholic Church to help out people with disabilities, but they said that the actions of the religious group are secular. It's nothing about imbuing people with religious sense or devotion or anything along those lines. And the court therefore made a distinction between a motivation to create a school, for instance, or a hospital as opposed to trying to encourage religious doctrine. So that is a difficult line drawing issue, and that's the argument here of why it's unconstitutional that will mesh the courts in determining whether these activities are really religious or not. But on the other hand, as the Coupreme Court said more than twenty years ago in the Walks case, sometimes this wine drawing for tax resumption is just inevitable. You can't really get around it. You have to have some kind of test in this instance. So that's the test of motivations and activities separations. And we'll see if the court and stuff like that. It's really unclear.

So, but the Roberts Court has expanded religious rights over and over again. Is this another chance for them to expect and religious rights?

So, but the Roberts Court has expanded religious rights over and over again. Is this another chance for them to expect and religious rights?

It is a chance, and it certainly it wouldn't be shocking for the Court to do that, but it is I think only fair to note that if the Court decides that Wisconnting cannot make a distinction between Catholic charities and the Catholic Church, that this will give a huge advantage to religious based organizations that are in healthcare and education, who then don't have to pay the same taxes that secular hospitals and secular universities would.

It is a chance, and it certainly it wouldn't be shocking for the Court to do that, but it is I think only fair to note that if the Court decides that Wisconnting cannot make a distinction between Catholic charities and the Catholic Church, that this will give a huge advantage to religious based organizations that are in healthcare and education, who then don't have to pay the same taxes that secular hospitals and secular universities would.

And the effect of a Supreme Court decision upholding this religious exemption would be widespread because almost all the states have laws similar to Wisconsins. Coming up next on the Bloomberg Law Show, I'll continue this conversation with Professor Harold Krant. We'll discuss whether agency power will take another hit at the Court this term, and a warning from the Chief Justice. I'm June Grosso and you're listening to Bloomberg.

And the effect of a Supreme Court decision upholding this religious exemption would be widespread because almost all the states have laws similar to Wisconsins. Coming up next on the Bloomberg Law Show, I'll continue this conversation with Professor Harold Krant. We'll discuss whether agency power will take another hit at the Court this term, and a warning from the Chief Justice. I'm June Grosso and you're listening to Bloomberg.

Change happens because people care about moving the arc of the universe towards justice, and it can take time, and it can take frustration. I live in frustration, and as you heard, every loss truly traumatizes me in my stomach and in my heart.

Change happens because people care about moving the arc of the universe towards justice, and it can take time, and it can take frustration. I live in frustration, and as you heard, every loss truly traumatizes me in my stomach and in my heart.

Justice Sonya so To. Mayor and the other liberal justices have been on the losing side of most of the controversial cases at the Supreme Court in the last few years, with the six conservative justices on the winning side, as the Court decided to overturn the right to abortion, expand gun rights, eliminate affirmative action, broaden presidential immunity, and roll back the power of federal agencies. Last term, the Conservative majority overturned a forty year old legal precedent in their attack on the administrative state. And there's a case on the dock at this term involving the Federal Communications Commission that could open a new avenue for a tax on administrative power. I've been talking to constitutional law expert Harold Krant, a professor at the Chicago Kent College of Law, how the Supreme Court is going to consider a challenge to the Universal Service Fund, which uses a charge imposed on monthly phone bills to help more than eight million people afford telephone and broadband service. The challenges are trying to revive the so called non delegation doctrine that says Congress can't delegate its legislative authority to executive agencies. Tell us a little about the issues here.

Justice Sonya so To. Mayor and the other liberal justices have been on the losing side of most of the controversial cases at the Supreme Court in the last few years, with the six conservative justices on the winning side, as the Court decided to overturn the right to abortion, expand gun rights, eliminate affirmative action, broaden presidential immunity, and roll back the power of federal agencies. Last term, the Conservative majority overturned a forty year old legal precedent in their attack on the administrative state. And there's a case on the dock at this term involving the Federal Communications Commission that could open a new avenue for a tax on administrative power. I've been talking to constitutional law expert Harold Krant, a professor at the Chicago Kent College of Law, how the Supreme Court is going to consider a challenge to the Universal Service Fund, which uses a charge imposed on monthly phone bills to help more than eight million people afford telephone and broadband service. The challenges are trying to revive the so called non delegation doctrine that says Congress can't delegate its legislative authority to executive agencies. Tell us a little about the issues here.

This is a Federal Communications Commission rule, but it's done by delegation from Congress, and so the Congress is delegated to the SEC the power to impose this fee. And the first claim against it is that the SEC shouldn't be imposing a fee that's a tax, and only Congress can impose taxes. This would be a wild argument if the Supreme Court buys it, because agencies apply user fees all the time, and you can look at user fees as attacks, you can look at them as something else, a subsidy. How do you distinguish one from the other. So one way that the Court could just cut back again dramatically the power of agencies is to begin to say that anything that looks like attas can only come from Congress as opposed to the agencies. I don't think the Court will go there, but that's at least one possibility. And there's another one that is pretty clear, because the statue itself says that the fees should be quote sufficient to preserve and advance universal service. That admittedly is quite vague, and so this is another vehicle potentially for the Court to revive the non delegation document, and that would say that Congress, if it gives power to the SEC, has to be far more nuanced and clear than this sort of broad understanding that they set fees sufficient to preserve and advanced universal services, just not giving enough direction to the administrative agency. And there's a third side of this particular challenge which I think is going to be very close on the Supreme Court, which is that the agency has given too much power to a private group. The SEC decided to use a group in this case, which is called a Universal Service Administration Company, which is a private group of mainly people in the telecom industry. They gave that power to set the fee and provided that if the agency took no action within fourteen days, the see recommended by this private group would become binding. So the court may say that the involvement in this private group makes the delegation even more constitutional problematic and strike down the structure on that ground. Maybe it's a small point, but I think the Court might say, Look, the agency at least has to take some positive, concrete actions, such as accepting a private recommendation from the group as to the fee before it becomes binding. In the name of the United States for the Court signaled to Congress to stop giving too much authority to private parties who are not subject to close oversight by the president or heads of agencies.

This is a Federal Communications Commission rule, but it's done by delegation from Congress, and so the Congress is delegated to the SEC the power to impose this fee. And the first claim against it is that the SEC shouldn't be imposing a fee that's a tax, and only Congress can impose taxes. This would be a wild argument if the Supreme Court buys it, because agencies apply user fees all the time, and you can look at user fees as attacks, you can look at them as something else, a subsidy. How do you distinguish one from the other. So one way that the Court could just cut back again dramatically the power of agencies is to begin to say that anything that looks like attas can only come from Congress as opposed to the agencies. I don't think the Court will go there, but that's at least one possibility. And there's another one that is pretty clear, because the statue itself says that the fees should be quote sufficient to preserve and advance universal service. That admittedly is quite vague, and so this is another vehicle potentially for the Court to revive the non delegation document, and that would say that Congress, if it gives power to the SEC, has to be far more nuanced and clear than this sort of broad understanding that they set fees sufficient to preserve and advanced universal services, just not giving enough direction to the administrative agency. And there's a third side of this particular challenge which I think is going to be very close on the Supreme Court, which is that the agency has given too much power to a private group. The SEC decided to use a group in this case, which is called a Universal Service Administration Company, which is a private group of mainly people in the telecom industry. They gave that power to set the fee and provided that if the agency took no action within fourteen days, the see recommended by this private group would become binding. So the court may say that the involvement in this private group makes the delegation even more constitutional problematic and strike down the structure on that ground. Maybe it's a small point, but I think the Court might say, Look, the agency at least has to take some positive, concrete actions, such as accepting a private recommendation from the group as to the fee before it becomes binding. In the name of the United States for the Court signaled to Congress to stop giving too much authority to private parties who are not subject to close oversight by the president or heads of agencies.

You refer to this as a wild argument. And this case is an appeal from the ultra conservative Fifth Circuit, which often uses novel legal reasoning, and it's split with two other appeals courts in declaring the program invalid. So does it seem like the Court took this case to overturn, to reverse the Fifth Circuit.

You refer to this as a wild argument. And this case is an appeal from the ultra conservative Fifth Circuit, which often uses novel legal reasoning, and it's split with two other appeals courts in declaring the program invalid. So does it seem like the Court took this case to overturn, to reverse the Fifth Circuit.

It's unclear to me. I think that the case has a merit to it, and I think that the Court has been interested in non delegation issues, and particularly non delegation issues involving power that's shared with private parties. So I'm not surprised that the Court took this case. And there is a split in the circuits, and I don't think we can be confident that the Court's going to rebuff the Fifth Circuit in this particular case. I think they will in other cases, but none of that soil in this one.

It's unclear to me. I think that the case has a merit to it, and I think that the Court has been interested in non delegation issues, and particularly non delegation issues involving power that's shared with private parties. So I'm not surprised that the Court took this case. And there is a split in the circuits, and I don't think we can be confident that the Court's going to rebuff the Fifth Circuit in this particular case. I think they will in other cases, but none of that soil in this one.

There's an interesting case involving a claim of reverse discrimination in employment and what plaintiffs have to show to support their claims under Title seven.

There's an interesting case involving a claim of reverse discrimination in employment and what plaintiffs have to show to support their claims under Title seven.

Yes, in order to advance a Title seven case or discrimination case, you have to show kind of a prime officia case that you were treated differently than another covered group, and that because you were treated differently, it resulted in some kind of adverse employment action. So do you even get to the pleting stage. One has to allege these particular type of harms. Now, what happens if you're a member of majority religion or majority race, or if you're straight in terms of your sexuality, and if you then make a claim that even though you're straight, you were treated unfairly based on your straightness, and therefore you are claiming some kind of discrimination that's protected under the Act. And indeed, in the ohioed case, there was an individual who is straight and she didn't get a promotion, and instead the promotion went to someone who is gay and then was later demoted and someone took her old position who was gay as well. And even though someone who is straight made these employment decisions, she claimed that the decision was in violation of her statutory rights to be treated the same as everybody else based upon her sexuality, and a number of courts have held, but others have disagreed that there is an additional hurdle that somebody who is of majority religion, race, or who are straight as in this case, has to surmount before they can get into court, and they have to show background circumstances to give more of color or more oomph to their argument that they were treated unfairly based upon covered characteristics. And in some ways that requirement makes the sense because for a court they have to go into any kind of analysis that just wastes time because it's so unlikely that if you're a majority, you'll be subject to discrimination. And so those courts said, then, as a way to conserve resources, we just want to make sure that somebody who pleaded the case will show a little bit more of those background circumstances, which suggests despite the fact that their majority, they were subject to discrimination.

Yes, in order to advance a Title seven case or discrimination case, you have to show kind of a prime officia case that you were treated differently than another covered group, and that because you were treated differently, it resulted in some kind of adverse employment action. So do you even get to the pleting stage. One has to allege these particular type of harms. Now, what happens if you're a member of majority religion or majority race, or if you're straight in terms of your sexuality, and if you then make a claim that even though you're straight, you were treated unfairly based on your straightness, and therefore you are claiming some kind of discrimination that's protected under the Act. And indeed, in the ohioed case, there was an individual who is straight and she didn't get a promotion, and instead the promotion went to someone who is gay and then was later demoted and someone took her old position who was gay as well. And even though someone who is straight made these employment decisions, she claimed that the decision was in violation of her statutory rights to be treated the same as everybody else based upon her sexuality, and a number of courts have held, but others have disagreed that there is an additional hurdle that somebody who is of majority religion, race, or who are straight as in this case, has to surmount before they can get into court, and they have to show background circumstances to give more of color or more oomph to their argument that they were treated unfairly based upon covered characteristics. And in some ways that requirement makes the sense because for a court they have to go into any kind of analysis that just wastes time because it's so unlikely that if you're a majority, you'll be subject to discrimination. And so those courts said, then, as a way to conserve resources, we just want to make sure that somebody who pleaded the case will show a little bit more of those background circumstances, which suggests despite the fact that their majority, they were subject to discrimination.

And this decision could have ramifications for DEI initiatives. How before I let you go, let's talk a little about the Chief Justice's year end report, which he issued on Tuesday. He defended the independence of the judiciary, but said it was being threatened by violence against judges, intimidation of judges, and the prospect of federal officials defying court orders. Robert's annual reports typically ignore the current concern surrounding the justices. For example, last year, he looked at the judiciary's role in integrating public schools after Brown v. Board of Education, with no mention at all of the Court having overturned the constitutional right to abortion just a few months earlier. So what's your take on this year's report.

And this decision could have ramifications for DEI initiatives. How before I let you go, let's talk a little about the Chief Justice's year end report, which he issued on Tuesday. He defended the independence of the judiciary, but said it was being threatened by violence against judges, intimidation of judges, and the prospect of federal officials defying court orders. Robert's annual reports typically ignore the current concern surrounding the justices. For example, last year, he looked at the judiciary's role in integrating public schools after Brown v. Board of Education, with no mention at all of the Court having overturned the constitutional right to abortion just a few months earlier. So what's your take on this year's report.

It can be empathetic to his wish and his hope and his fervent desire that the Supreme Court retained its independence and respect in our society. And I guess, on one hand, you can be skeptical, given that a lot of the loss of support and respect for the Court has come because of this Court's decisions, most notably Chief Justice Roberts's decision in the presidential communitic case in the abortion case as well. But I mean, I think he is right that we are, in this politicized world, even more open to attacks upon judges than we were before. And there's been picketing in front of justice houses, as we know, and that's something to be probably a little bit frightened up. But there's also been other kinds of defiance.

It can be empathetic to his wish and his hope and his fervent desire that the Supreme Court retained its independence and respect in our society. And I guess, on one hand, you can be skeptical, given that a lot of the loss of support and respect for the Court has come because of this Court's decisions, most notably Chief Justice Roberts's decision in the presidential communitic case in the abortion case as well. But I mean, I think he is right that we are, in this politicized world, even more open to attacks upon judges than we were before. And there's been picketing in front of justice houses, as we know, and that's something to be probably a little bit frightened up. But there's also been other kinds of defiance.

You know.

You know.

Vice President Advance has suggested that certain times it's totally appropriate for the administration to ignore what the Supreme Court would hold. So there are challenges coming from various different sectors, people that just disagree with the Court as well. It was what people think that they don't have to listen to what the Court says. So there is reason for Chief Justice Roberts to decry those kinds of challenges to the Court's authority. But I think at the same time, part of the problem is the courts aren't doing.

Vice President Advance has suggested that certain times it's totally appropriate for the administration to ignore what the Supreme Court would hold. So there are challenges coming from various different sectors, people that just disagree with the Court as well. It was what people think that they don't have to listen to what the Court says. So there is reason for Chief Justice Roberts to decry those kinds of challenges to the Court's authority. But I think at the same time, part of the problem is the courts aren't doing.

And according to the US Martial Service, the volume of threats directed at judges has more than tripled over the past decades, So certainly that's a concern. But when he talked about intimidation, and he mentioned protesters quote intent on harassing judges and public officials he said have tried to intimidate judges by suggesting political bias is behind their decisions without a credible basis. Both of those seem like First Amendment protected activities.

And according to the US Martial Service, the volume of threats directed at judges has more than tripled over the past decades, So certainly that's a concern. But when he talked about intimidation, and he mentioned protesters quote intent on harassing judges and public officials he said have tried to intimidate judges by suggesting political bias is behind their decisions without a credible basis. Both of those seem like First Amendment protected activities.

They can be right, it's a fine line to draw between when they are harassment as opposed to when it's just criticism of the court. And the way to I think see this clash most plainly is to talk about the immunity decision, and some people can criticize it as being badly crafted. Others can say it's just illegitimate. And those are two ways of criticizing the opinion, and it's hard to say what is really the difference between saying is poorly reasoned as opposed to it's politically lawless. Those are just different perspectives if people don't accept the opinion, and so I think he's conflating one with the other to some extent. But it is notoriously very difficult to try to figure out what is legitimate dissense protests as opposed to one saying that the Supreme Court is lawless and we should have a quick overhaul of the entire judicial system.

They can be right, it's a fine line to draw between when they are harassment as opposed to when it's just criticism of the court. And the way to I think see this clash most plainly is to talk about the immunity decision, and some people can criticize it as being badly crafted. Others can say it's just illegitimate. And those are two ways of criticizing the opinion, and it's hard to say what is really the difference between saying is poorly reasoned as opposed to it's politically lawless. Those are just different perspectives if people don't accept the opinion, and so I think he's conflating one with the other to some extent. But it is notoriously very difficult to try to figure out what is legitimate dissense protests as opposed to one saying that the Supreme Court is lawless and we should have a quick overhaul of the entire judicial system.

Robert specifically criticized threats to ignore federal court rulings by elected officials, which he said had come from across the political spectrum. But as you mentioned, and Vice President elect JD. Vance had said, and when the courts stop, you stand behind the country, like Andrew Jackson did, and say the Chief Justice has made his ruling, now let him enforce it. I just want to mention that not only is Vance a lawyer, but his wife clerked for the Chief Justice.

Robert specifically criticized threats to ignore federal court rulings by elected officials, which he said had come from across the political spectrum. But as you mentioned, and Vice President elect JD. Vance had said, and when the courts stop, you stand behind the country, like Andrew Jackson did, and say the Chief Justice has made his ruling, now let him enforce it. I just want to mention that not only is Vance a lawyer, but his wife clerked for the Chief Justice.

Which is an odd term for sure. And the Andrew Jackson issue arose at least allegedly out of protests from a Supreme Court decision saying that the removal of Indigenous peoples from a particular reservation was illegal and ordered the administration to comply with it and by all historical measures. Andrew Jackson refused and continued to disband the indigenous communities. And you know, with the Vice president articulating that kind of issue, it's putting into play this notion that the Court is just another political arm of the country and that it should be subservient to the president vice president who will elected and given a mandate by the voters, unlike the Supreme Court itself. And that is a dangerous notion and maybe some progressives have ported with it as well in frustration with what the Court has done recently. But now the Court is being challenged by the members of its party who appointed most of them, the Republicans, So they have reasons to be nervous because they're now potentially going to be challenged by both sides of the political spectrum.

Which is an odd term for sure. And the Andrew Jackson issue arose at least allegedly out of protests from a Supreme Court decision saying that the removal of Indigenous peoples from a particular reservation was illegal and ordered the administration to comply with it and by all historical measures. Andrew Jackson refused and continued to disband the indigenous communities. And you know, with the Vice president articulating that kind of issue, it's putting into play this notion that the Court is just another political arm of the country and that it should be subservient to the president vice president who will elected and given a mandate by the voters, unlike the Supreme Court itself. And that is a dangerous notion and maybe some progressives have ported with it as well in frustration with what the Court has done recently. But now the Court is being challenged by the members of its party who appointed most of them, the Republicans, So they have reasons to be nervous because they're now potentially going to be challenged by both sides of the political spectrum.

It's going to be an interesting year, that's for sure. Thanks so much, Hal that's Professor Harrold Krent of the Chicago Kent College of Law coming up dueling lawsuits over Blake Lively's claims of sexual harassment on a film set. I'm June Grosso and this is Bloomberg.

It's going to be an interesting year, that's for sure. Thanks so much, Hal that's Professor Harrold Krent of the Chicago Kent College of Law coming up dueling lawsuits over Blake Lively's claims of sexual harassment on a film set. I'm June Grosso and this is Bloomberg.

This is Bloomberg Law with June Grosso from Bloomberg Radio.

This is Bloomberg Law with June Grosso from Bloomberg Radio.

That special connection you feel, that first kiss, but fifteen seconds, that's all it takes to completely change everything. I'm so sorry.

That special connection you feel, that first kiss, but fifteen seconds, that's all it takes to completely change everything. I'm so sorry.

The biggest drama in Hollywood these days is not a film, but the legal drama surrounding the hit movie It Ends with Us, starring Blake Lively and director Justin Baldoni. There are dueling lawsuits and probably more to come. Lively sued Baldoni, Wayfairer Studios, and his PR team on Tuesday, alleging sexual harassment and a coordinated campaign to undermine her reputation for coming forward about sexual misconduct on the set of the movie. This came after Baldoni and his publicist filed a two hundred and fifty million dollar defamation suit against The New York Times, claiming the newspaper to fame them in an article about Lively's allegations, which they claim was rife with inaccuracies, misrepresentations and omissions. Joining me is labor and employment lawyer Nisha Verma, a partner at Dorsey and Whitney. Nisha tell us about Lively's lawsuit.

The biggest drama in Hollywood these days is not a film, but the legal drama surrounding the hit movie It Ends with Us, starring Blake Lively and director Justin Baldoni. There are dueling lawsuits and probably more to come. Lively sued Baldoni, Wayfairer Studios, and his PR team on Tuesday, alleging sexual harassment and a coordinated campaign to undermine her reputation for coming forward about sexual misconduct on the set of the movie. This came after Baldoni and his publicist filed a two hundred and fifty million dollar defamation suit against The New York Times, claiming the newspaper to fame them in an article about Lively's allegations, which they claim was rife with inaccuracies, misrepresentations and omissions. Joining me is labor and employment lawyer Nisha Verma, a partner at Dorsey and Whitney. Nisha tell us about Lively's lawsuit.

Blake Lively ultimately filed a lawsuit in federal court in New York, alleging the same allegations that she had previously indicated about ten days earlier in a complaint that was filed with the state agency in California that handles discrimination and harassment complaints. The complaint accuses Baldoni and the CEO Wayfarer of engaging in inappropriate sexual conduct on set. But that's not all. The very interesting thing about her action is that it shows text messages between Baldoni and his publicists which indicate that he hired a PR team to combat any potential negative PR if Lively goes public with what the internal messages call her grievances. Those text message between the publicists are explosive. So in one exchange, Baldoni's publicist, Jennifer Abel relates to another publicist, Melissa Nathan, that Baldoni's not satisfied with this PR plan that's been put forward, And we can see from reviewing it a pr plan that it is designed to discredit Lively, and there's a concern that's quoted by Baldoni that he doesn't feel like he's getting the protection he needs, and another publicist been responds saying we can bury anyone and we can't write that we will destroy her, noting what would happen if the communication has gone to the wrong hands. There are also texts that show that these two original publicists hired another agency to engage in some sort of social media activity on a wide scale that would shift the narrative from Baldoni to Lively. But the important thing to understand is that the core of a case is the same employment claims that we see filed by any other individual that goes through this state agency, which is sexual harassment and retaliation. And so the core of the sexual harassment complaints are that Baldoni was engaging in unnecessary sexual conduct, unnece sexual comments on text, and that Lively and her team brought forward their concerns during the writer strike in late twenty twenty three, and the studio actually agreed to meet Lively's conditions prior to resuming filming. Lively's complaint in and of itself says that filming proceeded smoothly from that point. But then there's this very specific action of Baldoni closer to the time of marketing the film after filming, hiring these pr agents to discredit Lively taking.

Blake Lively ultimately filed a lawsuit in federal court in New York, alleging the same allegations that she had previously indicated about ten days earlier in a complaint that was filed with the state agency in California that handles discrimination and harassment complaints. The complaint accuses Baldoni and the CEO Wayfarer of engaging in inappropriate sexual conduct on set. But that's not all. The very interesting thing about her action is that it shows text messages between Baldoni and his publicists which indicate that he hired a PR team to combat any potential negative PR if Lively goes public with what the internal messages call her grievances. Those text message between the publicists are explosive. So in one exchange, Baldoni's publicist, Jennifer Abel relates to another publicist, Melissa Nathan, that Baldoni's not satisfied with this PR plan that's been put forward, And we can see from reviewing it a pr plan that it is designed to discredit Lively, and there's a concern that's quoted by Baldoni that he doesn't feel like he's getting the protection he needs, and another publicist been responds saying we can bury anyone and we can't write that we will destroy her, noting what would happen if the communication has gone to the wrong hands. There are also texts that show that these two original publicists hired another agency to engage in some sort of social media activity on a wide scale that would shift the narrative from Baldoni to Lively. But the important thing to understand is that the core of a case is the same employment claims that we see filed by any other individual that goes through this state agency, which is sexual harassment and retaliation. And so the core of the sexual harassment complaints are that Baldoni was engaging in unnecessary sexual conduct, unnece sexual comments on text, and that Lively and her team brought forward their concerns during the writer strike in late twenty twenty three, and the studio actually agreed to meet Lively's conditions prior to resuming filming. Lively's complaint in and of itself says that filming proceeded smoothly from that point. But then there's this very specific action of Baldoni closer to the time of marketing the film after filming, hiring these pr agents to discredit Lively taking.

The first part of her allegations about harassment on the set. What kinds of things specifically does she complain about.

The first part of her allegations about harassment on the set. What kinds of things specifically does she complain about.

So there's an example of Baldoni's and another producer speaking about a pornography addiction. So that's something that I'm gathering is alleged to have occurred when the filming was not occurring. There's also allegations of sex scene being filmed and Valdoni going off script and engaging in things that were not previously agreed to.

So there's an example of Baldoni's and another producer speaking about a pornography addiction. So that's something that I'm gathering is alleged to have occurred when the filming was not occurring. There's also allegations of sex scene being filmed and Valdoni going off script and engaging in things that were not previously agreed to.

Baldoni has disputed Lively's claims, and in his suit against The New York Times, he claims that The Times deliberately omitted portions of text exchanges and other information that contradicted Lively's version of events. He's also claimed that Lively wanted to wait to meet with an intimacy coordinator when production started, and that she advocated for her characters closed to be sexier. I mean, if this goes to triale. Is this all going to be a jury question about whether this constitutes sexual harassment?

Baldoni has disputed Lively's claims, and in his suit against The New York Times, he claims that The Times deliberately omitted portions of text exchanges and other information that contradicted Lively's version of events. He's also claimed that Lively wanted to wait to meet with an intimacy coordinator when production started, and that she advocated for her characters closed to be sexier. I mean, if this goes to triale. Is this all going to be a jury question about whether this constitutes sexual harassment?

Yeah? I think the question of whether there was sexual harassment on the set of this movie is high factual. I don't think there's a ton of interesting legal questions as to that first part of the lawsuit. I do believe that comparing Lively's complaint in Baldoni's complaint does not simply answer the question with respect to Lively's allegation. For example, the text that Baldoni shared in his complaint, as you mentioned against The New York Times, I believe it shows that Lively did not need to meet with the intimacy coordinator in advance of starting filming. Altogether, Lively's allegations about the intimacy coordinator is that during the actor strike, before they resumed filming, So this is several months after probably that first text. Lively required an intimacy coordinator on set at all times. So while Baldoni's complaint appears to go to the content of an intimacy coordinator, it doesn't in and of itself answer the question as to whether Lively's allegation is accurate.

Yeah? I think the question of whether there was sexual harassment on the set of this movie is high factual. I don't think there's a ton of interesting legal questions as to that first part of the lawsuit. I do believe that comparing Lively's complaint in Baldoni's complaint does not simply answer the question with respect to Lively's allegation. For example, the text that Baldoni shared in his complaint, as you mentioned against The New York Times, I believe it shows that Lively did not need to meet with the intimacy coordinator in advance of starting filming. Altogether, Lively's allegations about the intimacy coordinator is that during the actor strike, before they resumed filming, So this is several months after probably that first text. Lively required an intimacy coordinator on set at all times. So while Baldoni's complaint appears to go to the content of an intimacy coordinator, it doesn't in and of itself answer the question as to whether Lively's allegation is accurate.

Let's talk about the retaliation claim he hired a PR team. Lots of high profile people and even companies hire crisis PR teams. What does she allege that makes that actionable?

Let's talk about the retaliation claim he hired a PR team. Lots of high profile people and even companies hire crisis PR teams. What does she allege that makes that actionable?

Interestingly, like any other employee that brings a retaliation claim, Lively is, at her core asserting that she was subject to sexual harassment, she brought a valid complaint against that, and then she was subject to an adverse employment action as it relates to her complaint. Those are the elements of the Elisa California and federal claims that she's bringing. Now, that is what I think raises the most interesting legal issue here is that her argument is not that she was fired from the movie. Her argument isn't that she was demoted. Her argument is that her employer hired outside professionals to discredit her in connection with the marketing of the movie, in anticipation that Lively would ultimately come forward with her complaints, which Lively maintains are protected. And so I think there's a couple preliminary questions. There was Lively an employee of some of these people this entire time? Did her employment start and end during the filming of the movie, or did she continue to be an employee during the marketing? Can there be an adverse employment action to someone who maybe is no longer your employee. That's an interesting question. And then two, does this conduct of hiring publicists to discredit Lively in anticipation of her coming forward with her grievances constitute an adverse employment action? Where Lively's complaint in and of itself speaks to that damage of the adverse employment action being done to other brands that are unrelated to her employment on this movie and employment with Wayfarer, her beverages brand, her haircare brand, obviously, her ability to appear in additional TV shows and on Saturday Night Live. There's an interesting and serious question as to whether making action that might interfere with her ability to essentially work other jobs is an adverse employment action in this job.

Interestingly, like any other employee that brings a retaliation claim, Lively is, at her core asserting that she was subject to sexual harassment, she brought a valid complaint against that, and then she was subject to an adverse employment action as it relates to her complaint. Those are the elements of the Elisa California and federal claims that she's bringing. Now, that is what I think raises the most interesting legal issue here is that her argument is not that she was fired from the movie. Her argument isn't that she was demoted. Her argument is that her employer hired outside professionals to discredit her in connection with the marketing of the movie, in anticipation that Lively would ultimately come forward with her complaints, which Lively maintains are protected. And so I think there's a couple preliminary questions. There was Lively an employee of some of these people this entire time? Did her employment start and end during the filming of the movie, or did she continue to be an employee during the marketing? Can there be an adverse employment action to someone who maybe is no longer your employee. That's an interesting question. And then two, does this conduct of hiring publicists to discredit Lively in anticipation of her coming forward with her grievances constitute an adverse employment action? Where Lively's complaint in and of itself speaks to that damage of the adverse employment action being done to other brands that are unrelated to her employment on this movie and employment with Wayfarer, her beverages brand, her haircare brand, obviously, her ability to appear in additional TV shows and on Saturday Night Live. There's an interesting and serious question as to whether making action that might interfere with her ability to essentially work other jobs is an adverse employment action in this job.

If his conduct on set didn't rise to the level of sexual harassment, what happens with the retaliation suited?

If his conduct on set didn't rise to the level of sexual harassment, what happens with the retaliation suited?

The question for the retaliation suit isn't necessarily was she actually subject to retaliation under the elements of the law. It's did she have a good faith belief to believe she was subject to sexual harassment? And did she raise a complaint about that? And she did the documentation during the actor strike indicates that she did raise that complaint and the root of the retaliation action is based on her complaint, whether it was one hundred percent true or not. Did her employer act in a way adversely to her employment? That brings us to the separate tricky question, which is hiring publicists in this manner pant him out to an adverse employment action when perhaps the person's employment is over.

The question for the retaliation suit isn't necessarily was she actually subject to retaliation under the elements of the law. It's did she have a good faith belief to believe she was subject to sexual harassment? And did she raise a complaint about that? And she did the documentation during the actor strike indicates that she did raise that complaint and the root of the retaliation action is based on her complaint, whether it was one hundred percent true or not. Did her employer act in a way adversely to her employment? That brings us to the separate tricky question, which is hiring publicists in this manner pant him out to an adverse employment action when perhaps the person's employment is over.

It seems like there's a lot having to do with the press tour and that Baldoni stepped away from the plan that the team originally agreed upon and was focusing on female trauma rather than female triumph, and that Lively and just about everyone else went in one direction and he went in another. Also that they were vague about their comments on Baldoni's performances and directing, So it seems like the camps divided there. So wouldn't he have a rite at that point to try to defend himself And you might call it retaliation, but he might call it defending himself.

It seems like there's a lot having to do with the press tour and that Baldoni stepped away from the plan that the team originally agreed upon and was focusing on female trauma rather than female triumph, and that Lively and just about everyone else went in one direction and he went in another. Also that they were vague about their comments on Baldoni's performances and directing, So it seems like the camps divided there. So wouldn't he have a rite at that point to try to defend himself And you might call it retaliation, but he might call it defending himself.

And he uses those words in the longer texts that are included and Baldoni's complain against The New York Times Following the portions of the text that I read to you with the very salacious and explosive comments of we can bury anyone, and we can't write that we will destroy her. There is further context where the publicist is indicating that this is all an effort to defend you because you deserve defense. I think that is going to be a highly factual question in the case. I don't know that it's going to be determinive because Baldoni's materials that he includes in the New York Times complaint don't dispute the core allegation by Lively that these individuals were hired to discredit Lively, and one of those reasons is because there was an anticipation that Lively was going to bring forward her grievances, as stated in their materials, and it cannot be separated that one of those grievances is Lively's allegations of sexual harassment, which should constitute protected activity under the laws she's suing. Under the fact that there was an underlying sexual harassment complaint here makes some of the later motivations I think potentially less relevant when we come to the legal analysis of what Lively is alleging.

And he uses those words in the longer texts that are included and Baldoni's complain against The New York Times Following the portions of the text that I read to you with the very salacious and explosive comments of we can bury anyone, and we can't write that we will destroy her. There is further context where the publicist is indicating that this is all an effort to defend you because you deserve defense. I think that is going to be a highly factual question in the case. I don't know that it's going to be determinive because Baldoni's materials that he includes in the New York Times complaint don't dispute the core allegation by Lively that these individuals were hired to discredit Lively, and one of those reasons is because there was an anticipation that Lively was going to bring forward her grievances, as stated in their materials, and it cannot be separated that one of those grievances is Lively's allegations of sexual harassment, which should constitute protected activity under the laws she's suing. Under the fact that there was an underlying sexual harassment complaint here makes some of the later motivations I think potentially less relevant when we come to the legal analysis of what Lively is alleging.

He filed a defamation action against the New York Times for two hundred and fifty million dollars. He hasn't yet filed the lawsuit against Lively. What do you think the strategy is here? On his side?

He filed a defamation action against the New York Times for two hundred and fifty million dollars. He hasn't yet filed the lawsuit against Lively. What do you think the strategy is here? On his side?

I believe he filed the lawsuit against The New York Times because he knows his ability to file a lawsuit against Lively during those ten days was incredibly limited. The first legal action to be filed in this, we'll call it a controversy, was Lively's agency complaint with the California Civil Rights Division. Filing a defamation lawsuit based on somebody's submission to that agency or filing some sort of countersuit would not go very far at all. It would be subject potentially to an anti slat motion, and against filing something with the state agency like that is considered privileged if there was a defamation action. So in order for Baldoni to get essentially his side of the story out, I believe the lawsuit against the New York Times was his available avenue to do so.

I believe he filed the lawsuit against The New York Times because he knows his ability to file a lawsuit against Lively during those ten days was incredibly limited. The first legal action to be filed in this, we'll call it a controversy, was Lively's agency complaint with the California Civil Rights Division. Filing a defamation lawsuit based on somebody's submission to that agency or filing some sort of countersuit would not go very far at all. It would be subject potentially to an anti slat motion, and against filing something with the state agency like that is considered privileged if there was a defamation action. So in order for Baldoni to get essentially his side of the story out, I believe the lawsuit against the New York Times was his available avenue to do so.

So she filed that complaint in California, and hours after you sued the New York Times, she sued him in New York. What's her strategy?

So she filed that complaint in California, and hours after you sued the New York Times, she sued him in New York. What's her strategy?

Well, I'll speak to the states first. So I understand from her original contract, which is alleged in her New York complaint, I understand that there was a California choice of law provision. Therefore, that does explain the submission of the civil rights complaint to the California State Agency and invoking California employment laws simultaneously. Lively's complaint, which is filed in New York, does allege that much of the conduct between the parties occurred in New York. Lively and her husband, Ryan Reynolds, have a residence in New York, and I believe a lot of the business transactions occurred in New York.

Well, I'll speak to the states first. So I understand from her original contract, which is alleged in her New York complaint, I understand that there was a California choice of law provision. Therefore, that does explain the submission of the civil rights complaint to the California State Agency and invoking California employment laws simultaneously. Lively's complaint, which is filed in New York, does allege that much of the conduct between the parties occurred in New York. Lively and her husband, Ryan Reynolds, have a residence in New York, and I believe a lot of the business transactions occurred in New York.

How do you think this goes down? What happens next?

How do you think this goes down? What happens next?

All these people who are soon have to respond to their complaints, right, that's a lot of people. Another fascinating as aspect of this case is that we've talked about essentially three legal complaints. There were actually four legal complaints in ten days because the original PR firm that Baldoni was engaged with, the owner of that firm has sued her former employee, who is one of the publicists we've been speaking about, for breach of contract, and she's also sued Baldoni. So, like I said, all of these individuals that have been served with lawsuits have to respond, taking them one at a time. I think the lawsuit against The New York Times is going to be one that's more likely to be handled on a procedural basis. The New York Times can bring an anti slap action, and it has successfully done so with respect to other similar lawsuits, including one by Donald Trump. They also have defenses with respect to the defamation action because there is a requirement that Baldonis show malice, and there's a serious question as to whether his complaint even attempts to do that. For example, there's numerous times where Baldoni presents a longer version of a text message that Lively had produced in her complaint. But the longer version of the text message doesn't necessarily contradict what it is Lively is at her core alleging in her complaint. It just provides more context as to what these people were talking about. Really briefly, there's an example of Lively producing a text message between the publicists that does not include an emoji, which we can see is because these were forensically pulled, and Baldoni producing a separate version that includes an upside down emoji and indicating that that upside down emoji indicates the text message was sarcastic and that The New York Times should have noted that that is going to be challenging to parlay into actual malice, which is necessary to bring a defamation suit on a public matter like this.

All these people who are soon have to respond to their complaints, right, that's a lot of people. Another fascinating as aspect of this case is that we've talked about essentially three legal complaints. There were actually four legal complaints in ten days because the original PR firm that Baldoni was engaged with, the owner of that firm has sued her former employee, who is one of the publicists we've been speaking about, for breach of contract, and she's also sued Baldoni. So, like I said, all of these individuals that have been served with lawsuits have to respond, taking them one at a time. I think the lawsuit against The New York Times is going to be one that's more likely to be handled on a procedural basis. The New York Times can bring an anti slap action, and it has successfully done so with respect to other similar lawsuits, including one by Donald Trump. They also have defenses with respect to the defamation action because there is a requirement that Baldonis show malice, and there's a serious question as to whether his complaint even attempts to do that. For example, there's numerous times where Baldoni presents a longer version of a text message that Lively had produced in her complaint. But the longer version of the text message doesn't necessarily contradict what it is Lively is at her core alleging in her complaint. It just provides more context as to what these people were talking about. Really briefly, there's an example of Lively producing a text message between the publicists that does not include an emoji, which we can see is because these were forensically pulled, and Baldoni producing a separate version that includes an upside down emoji and indicating that that upside down emoji indicates the text message was sarcastic and that The New York Times should have noted that that is going to be challenging to parlay into actual malice, which is necessary to bring a defamation suit on a public matter like this.

Do you think a settlement is likely here?

Do you think a settlement is likely here?

No? I don't think so. I believe these complaints were in part filed because each of these parties needed to tell their story in light of the other content about them out there, and now that that's happened, I see an expectation that that process continue. I don't know anybody's motivations, but the overall story does not indicate that any of these actors primarily file their lawsuits for money, and settlement typically only gets you money. They can't change the public perception.

No? I don't think so. I believe these complaints were in part filed because each of these parties needed to tell their story in light of the other content about them out there, and now that that's happened, I see an expectation that that process continue. I don't know anybody's motivations, but the overall story does not indicate that any of these actors primarily file their lawsuits for money, and settlement typically only gets you money. They can't change the public perception.

So then a lot more to come in this particular Hollywood drama. Thanks so much, Nishe. That's nische Verma of Dorsey and Whitney. In other legal news today, President elect Donald Trump has lost his bid to get his conviction in the New York hush money case thrown out before his inauguration later this month. On Friday, Judge Juan Mrshon refused to toss the jury verdict, joining me is Bloomberg Legal reporter Eric Larson. Eric tell us why the judge made this decision.

So then a lot more to come in this particular Hollywood drama. Thanks so much, Nishe. That's nische Verma of Dorsey and Whitney. In other legal news today, President elect Donald Trump has lost his bid to get his conviction in the New York hush money case thrown out before his inauguration later this month. On Friday, Judge Juan Mrshon refused to toss the jury verdict, joining me is Bloomberg Legal reporter Eric Larson. Eric tell us why the judge made this decision.

Judge Marshawan said that Trump was essentially requesting to expand what we already know of its presidential immunity from criminal prosecution to extend that to president elect, and the judge indicated this, you know, was unprecedented. There has never been a case like this before, and that the established presidential immunity for a sitting president has never been extended to a president elect. And the judge that there was no reason to do that. Now, did you.

Judge Marshawan said that Trump was essentially requesting to expand what we already know of its presidential immunity from criminal prosecution to extend that to president elect, and the judge indicated this, you know, was unprecedented. There has never been a case like this before, and that the established presidential immunity for a sitting president has never been extended to a president elect. And the judge that there was no reason to do that. Now, did you.

Find any of Trump's arguments to have a jury verdict thrown out persuasive?

Find any of Trump's arguments to have a jury verdict thrown out persuasive?

Trump's lawyer essentially disappointed to the established president for a sitting president being protected from criminal prosecution, you know, saying that previous Supreme Court president and the Justice Department's own internal policies on prosecuting a sitting president that they relate to the imposition of a criminal sentence essentially being a bad look for a president because of the stigma associated with it and also the mental and physical demands associated with the defendant helping prepare for their defense, that all of that would interfere with the president's duties. And I think that in Trump's view, he's saying that while he's not a sitting president, that he has so much work to do and that he has so much responsibilities as a president elect, that essentially the same protection should be extended to him for the same reason. But Judge Marson just wasn't having that and said that he was forbidden. The judge that he was forbidden from recognizing any the presidential elect community, saying that that would essentially be a retroactive dismissal of criminal charges against a defendant who happened to be elected president after they were convicted, and that he just wasn't going to do that.

Trump's lawyer essentially disappointed to the established president for a sitting president being protected from criminal prosecution, you know, saying that previous Supreme Court president and the Justice Department's own internal policies on prosecuting a sitting president that they relate to the imposition of a criminal sentence essentially being a bad look for a president because of the stigma associated with it and also the mental and physical demands associated with the defendant helping prepare for their defense, that all of that would interfere with the president's duties. And I think that in Trump's view, he's saying that while he's not a sitting president, that he has so much work to do and that he has so much responsibilities as a president elect, that essentially the same protection should be extended to him for the same reason. But Judge Marson just wasn't having that and said that he was forbidden. The judge that he was forbidden from recognizing any the presidential elect community, saying that that would essentially be a retroactive dismissal of criminal charges against a defendant who happened to be elected president after they were convicted, and that he just wasn't going to do that.

And the judge set a sentencing date for next Friday, and he also.

And the judge set a sentencing date for next Friday, and he also.

Took the unusual step of indicating in this ruling that he has no intention of sentencing Trump to any period of time behind bars, and as we know, for the crimes that Trump was convicted of, he faces as long as four years behind bars. Many legal experts, even before Trump won the election, predicted that all things being equal, he probably would get far less time behind bars than that, or probably more likely no time, and it would just be probation. So it's not a huge surprise that the judge is saying he's not going to sentence him to time behind bars, but he did take the unusual step of signaling that just so everyone is aware that he's not, on January tenth, going to be sentencing Trump to prison. But of course that leads up in the air what the sentence will be, if it could be a period of probation or something like that. All of that would also be unprecedented for Trump to have a sentence of any kind handed down, you know, ten days before his inauguration, So we can expect, probably I would think, a very quick attempt at appealing, but it's uncle exactly how that's playing your work. You can't appeal the verdict itself properly until he is sentenced. He may be able to appeal disruling, so we'll have to wait and see on that. And by the way, that judge gave Trump until January fifth to decide whether or not he wanted to appear in court for the sentencing or appear virtually.

Took the unusual step of indicating in this ruling that he has no intention of sentencing Trump to any period of time behind bars, and as we know, for the crimes that Trump was convicted of, he faces as long as four years behind bars. Many legal experts, even before Trump won the election, predicted that all things being equal, he probably would get far less time behind bars than that, or probably more likely no time, and it would just be probation. So it's not a huge surprise that the judge is saying he's not going to sentence him to time behind bars, but he did take the unusual step of signaling that just so everyone is aware that he's not, on January tenth, going to be sentencing Trump to prison. But of course that leads up in the air what the sentence will be, if it could be a period of probation or something like that. All of that would also be unprecedented for Trump to have a sentence of any kind handed down, you know, ten days before his inauguration, So we can expect, probably I would think, a very quick attempt at appealing, but it's uncle exactly how that's playing your work. You can't appeal the verdict itself properly until he is sentenced. He may be able to appeal disruling, so we'll have to wait and see on that. And by the way, that judge gave Trump until January fifth to decide whether or not he wanted to appear in court for the sentencing or appear virtually.

I know you'll be there, Eric, thanks so much. That's Bloomberg Legal reporter Eric Larson, 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, 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

I know you'll be there, Eric, thanks so much. That's Bloomberg Legal reporter Eric Larson, 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, 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