This is [music] Bloomberg Law with June

Grasso from Bloomberg Radio.

>> At this point, I'm going to declare that

the jury is deadlocked and I'm going to

declare a mistrial.

>> After a five-week trial, about 38 hours

of jury deliberations over seven days,

three notes from the jury saying they

were deadlocked, and an emergency appeal

to the top court in Massachusetts, Judge

William Sullivan declared a mistrial on

Friday in the case of Lindsay Clancy who

strangled her three young children in

January of 2023.

The trial was punctuated by dramatic

moments including the revelation on

Thursday that the jurors were deadlocked

11 to 1 in favor of acquitting Clancy

who claimed she wasn't criminally

responsible for killing her children

because she was suffering from

postpartum psychosis. The defense

attorney tried to get Judge Sullivan to

remove that holdout juror, but the judge

refused.

>> I don't

feel that I is proper for me to side

with one side or the other of the

deliberations. I don't feel it's

appropriate for me to say I agree with

one juror or 11.

>> Outside the courthouse, Clancy's lawyer

Kevin Reddington criticized the district

attorney and the holdout juror.

>> They know that they were robbed by one

man

for whatever his agenda was

who stole seven weeks

of the life of these other jurors.

>> The Plymouth County District Attorney

Tim Cruz said they haven't decided

whether they'll retry Clancy, but their

priority has always been to seek justice

for the three children.

>> I bring it all back

to the child victims in this case,

Cora, Dawson, and Kallen.

This was and has always been

about getting justice for those three

little babies.

>> My guest is former federal prosecutor

Robert Mintz, a partner at McCarter &

English. Bob, the last few days of this

trial were really unusual. Have you ever

seen a defense attorney basically

refusing to accept a deadlocked jury,

even going to a higher court to try to

get a stay to prevent the judge from

declaring a mistrial?

>> It is very unusual in this circumstance

because the judge had already questioned

the juror and concluded that the juror

was not unwilling to follow the law, and

at that point, there's really not much

more that the judge can do. So, to try

to seek a stay by the defense here

seemed to be rather puzzling because

it's hard to imagine exactly what he was

trying to accomplish.

>> And the jury had already said they were

deadlocked three times, so under

Massachusetts law, he couldn't have sent

them back to deliberate anymore.

>> No, that's exactly right, and that is

what the judge was concerned about

because under Massachusetts law, you can

give what's called a dynamite charge or

a Rodriguez two each charge, which is

basically telling jurors to go back to

try to reach a verdict that they have as

much information as any other jury might

have, and that a lot of time and effort

has been invested into the trial, and

they should go back and try to see if

they can reach a unanimous verdict. But

at the same time, the judge will always

say that you should not surrender your

beliefs, your convictions, and at the

end of the day, if there is a

disagreement among jurors so that there

cannot be a unanimous verdict, then

there is a mistrial. And the concern

that the judge here had in this case, no

doubt, is that if you continue to put

pressure on a jury where one juror has

already taken a position that they can't

reach a unanimous verdict, and the other

jurors agree, and you begin to apply

excessive pressure to that juror, that

creates an issue on appeal because it

looks like you're trying to steamroll

that one lone juror and try to get them

to change their position by applying

added pressure to them. And that's why

the judge can push, but only push so

far, and then at some point the judge

has no choice but to declare a mistrial,

and that's exactly what happened here.

>> The defense attorney tried to get the

judge to remove that one holdout juror

after the other jurors said that he

wasn't following the law on reasonable

doubt, but reasonable doubt is a

difficult concept, and obviously people

can disagree about it. That's what a

trial is about. How do you knock off a

juror in that circumstance?

>> Well, you can't knock a juror off simply

because they don't agree with the other

jurors and have come to a different

conclusion based upon the evidence. What

the defense lawyer is trying to argue is

that the juror who is the apparent

holdout is simply refusing to follow the

law as it's been explained by the judge.

Now, we don't know whether that's the

case or not, but I suspect that what the

judge was doing by questioning the

individual jurors was trying to make

that determination. And if the holdout

is simply a juror who has a strong

conviction and is unwilling to be moved

by the views of the other jurors, that's

not something that will result in that

juror being removed from the jury. It

would have to be a circumstance where a

juror was more or less telling the judge

that they were refusing to follow the

instructions of the court, and in that

instance, it's possible the judge would

remove them on that basis.

>> Describe the competing narratives

presented by the prosecution and the

defense at trial.

>> The question of who what would ever

drive someone to harm their own children

is something that most people really

have never had to grapple with and have

a difficult time, I think, assimilating

as to exactly what would drive somebody

to commit that kind of act. And what we

see in this case are two very different

narratives, both compelling in their own

right, where you've got the evidence of

a woman, according to prosecution,

committing this premeditated act where

she had told her husband to go out to

dinner, to go out to the CVS to pick

something up, and according to evidence

produced by prosecutors during the

trial, she had looked at how long it

would take for him to come back. She had

been with her children during the day,

taking them to doctor's appointments,

and basically the prosecution has said

that although she may have a mental

illness, she certainly knew what was

going on and that this was an act of

premeditation, and she knew the

wrongfulness of her conduct when she

committed this crime. The defense, on

the other hand, painting a very

different picture and really, I think,

trying to put the medical system on

trial in a certain sense by saying that

their client visited a psychiatrist 14

times, tried 13 different medications,

she called a suicide hotline, she went

to the emergency room, she tried to

enroll in an inpatient program, she

confided in her husband that she had

these thoughts of harming their

children, and basically they are trying

to suggest that she did everything she

could to try to prevent this from

happening, but ultimately this illness,

this rare condition called postpartum

psychosis, caused her to have these

hallucinations where she allegedly heard

this male voice telling her to kill her

children. And jurors faced the very

daunting task here. It's very difficult

to try to sift through these two

competing narratives of what's happened

here, to try to listen to the testimony,

the medical testimony, the

pharmaceutical testimony, and the data,

the heartbreaking reality of what

actually happened here, a mother killing

her own three young children, and figure

out whether or not this was a

premeditated act, and that justice is

served by sending this woman to prison

for the rest of her life, or whether she

really is suffering from a severe mental

illness, and she really committed a

crime without knowing right from wrong,

and that the right result is to send her

to a psychiatric institute rather than a

prison.

>> In Massachusetts, things are sort of

flipped around in their version of an

insanity defense. Explain how it differs

from other states and puts the burden on

the prosecution.

>> Massachusetts actually has one of the

less restrictive definitions

of insanity. The defense here is

claiming postpartum psychosis, which in

every state is treated like any other

insanity defense. And in most cases,

defendants must prove that they did not

understand what they were doing, or they

did not know what they were doing was

wrong. That's the most stringent

standard. Other states have slightly

less stringent standards. For example,

certain states allow that defendants may

have known what they were doing was

wrong, but couldn't resist the impulse

to do it. Another standard allows jurors

to consider but for the defendant's

mental defect, the crime would not have

occurred. The interesting thing about

the law in Massachusetts is that it

never shifts the burden onto the

defense. All the other standards in most

states shift the burden onto the defense

to prove they didn't know what they were

doing or that they did not know what

they were doing was wrong. But in

Massachusetts, the burden remains with

the prosecution at all times, which

makes it more difficult for prosecutors

to overcome this defense. And in

Massachusetts, it requires prosecutors,

not the defense, to prove that a

mentally ill defendant retained the

substantial capacity to appreciate the

wrongfulness or criminality of their

conduct and to conform their conduct to

the requirements of the law. So, in this

case, once that defense is raised by the

defense, the burden shifts back to the

prosecution to overcome that defense.

And in this case, the prosecution tried

to do it again by proving that the

conduct was premeditated and that Ms.

Clancey knew what she was doing. She may

have been mentally ill, that's conceded

by prosecutors, but the standard here is

whether or not she knew the wrongfulness

and the criminality of her conduct and

was unable to conform her conduct to the

requirements of the law.

>> The prosecution now knows that they only

convinced one holdout juror. But this is

such a high-profile case. Do you think

they'll retry her?

>> Well, it's highly unlikely prosecution

is simply going to drop the case. That

is not going to happen. But what they

are going to do is go back and

scrutinize the trial, look at the

testimony, see how their evidence went

in, and see how they can improve on that

if there is going to be a second trial.

And there will no doubt be some

conversation with the defense to see if

some plea deal can be reached in order

to avoid a second trial since both sides

have a lot to risk if they go to trial

again.

>> We may learn more at the next court

hearing, which is scheduled for

September 29th. Always a pleasure to

have you on, Bob. Thanks so much. That's

Robert Mintz of McCarter & English.

Coming up next on the Bloomberg Law

Show, how the Supreme Court's decision

to allow Trump's ballroom to go forward

imperils other cases over his

construction projects. I'm June Grasso

and you're listening to Bloomberg.

>> One thing I know how to do is build.

And so we put a brand new

face on the front of the White House, on

the ground the cars will pull up.

And this is what you should have as

opposed to the asphalt.

>> President Trump has spent much of his

second term trying to leave his mark on

the White House and throughout DC. And

the White House ballroom has been the

centerpiece of that campaign.

>> But it's going to be a incredible It's

going to be aside from being secure,

it's going to be the most I think it's

going to be the most beautiful ballroom

ever built.

>> And on Monday, five conservatives on the

Supreme Court cleared the way for Trump

to continue building the ballroom over

the dissents of the Chief Justice and

the three liberals. And brushing aside

conclusions by two lower courts that

he's probably violating the law. The

majority found that the historic

preservation non-profit that sued to

stop the ballroom doesn't have legal

grounds or standing to contest the

project. The decision presents a new

high hurdle for those challenging

Trump's other construction projects. In

fact, on Thursday, the administration

filed a motion to have the lawsuit

challenging Trump's 250-ft arch

dismissed for standing reasons, citing

the Supreme Court's decision on the

ballroom. My guest is Tracy Fight Love,

founder and executive director of

Lawyers for Good Government. Tracy, so

the majority on the Supreme Court found

that the historic preservation group

that sued did not have standing. Tell us

more about that.

>> So, basically, the court did not rule

that President Trump has the authority

to build the ballroom. What they did

rule is that the particular plaintiffs

that initiated this lawsuit are not

allowed to challenge it. When you say

someone doesn't have the standing, it

means they don't have the legal right to

challenge a particular action. It does

not mean the action that they're

challenging was legal.

>> Do you think that the Supreme Court

often uses standing as sort of an

off-ramp that allows it to avoid making

a decision on the merits until it's too

late?

>> Yes. Yes, I do think that. And the

reason I think that is because there

have been too many instances over the

years when the court seems to find that

someone does have standing if it relates

to an issue that they want to see

decided in a particular way, and someone

else doesn't have standing because they

don't want to get to the merits of a

particular issue. That distinction

really, really matters. I mean, when you

look at the decision, the only four

justices who addressed the legality of

the actual ballroom project all

concluded that it was likely unlawful.

That includes Chief Justice Roberts, who

emphasized that Congress has not

expressly authorized this construction.

So, it does seem in this instance that

possibly standing was an easy out for

them. It's not a typical case where

someone is injured and obviously has

standing. Do you think it's a harder

case to make out standing here than

usual? Yeah, this was not clear-cut in

terms of the standing question. The real

issue is when you look at the

overarching pattern of decisions about

standing. For example, in this case,

when they concluded that the National

Trust lacked standing, they said it was

because the aesthetic or historical

injuries that the plaintiffs were

asserting were not sufficiently concrete

or particularized. But, there is other

precedent, Supreme Court precedent that

has in some instances recognized

aesthetic injuries as being sufficient

for standing. For instance, in

environmental and conservation cases,

when plaintiffs actually use or observe

the place or resource that's being

affected. So, it was a close question,

and I think because it could be

perceived as close, it gave them the

room to maneuver that they wanted in

order to not stop the ballroom

construction.

>> And we don't often see the Chief Justice

in dissent with the three liberals. How

surprising is that?

>> Yeah, I mean, it's

I'll admit I'm not often surprised

anymore at all about what these Supreme

Court Justices do. But, I think it does

speak to the fact that this is not a

partisan question. The issue of standing

was not decided along the basis of who

appointed which justice. That means that

this issue may have even been closer

than the court wants to admit. So, I

think it's interesting that Justice

Roberts actually agreed that the

substantive question, the actual

question of whether that ballroom was

legally being constructed, was probably

going to be answered in the negative.

>> The Chief Justice did write a strong

dissent. He wrote that Congress has

explicitly prohibited the construction

of any building or structure on grounds

of the federal government in D.C.

without congressional authorization. He

also said that the majority's order is

no victory for the separation of powers.

Now, the court's conservatives have been

consistently expanding presidential

power. Do you think the Chief is

suddenly coming to the realization that

there's a separation of powers problem?

>> I hope he's realizing it. I don't know

if it's sudden or if this is something

that he's been willing to accept up

until a certain point, but this is

fundamentally a story about separation

of powers and the rule of law. We can't

allow the rule of law to be act first,

ask permission later. Standing matters,

obviously, but if these procedural

barriers are repeatedly preventing

anyone from challenging potentially

unlawful executive action, then the

question is who

And are the checks and balances that the

Constitution meant to set out really in

existence now in a meaningful way?

>> The administration has been doing this

over and over again in different areas,

you know, deporting people before things

can get into court, cutting off funding

before things can get into court, firing

people before things can get into court,

on and on. And, you know, the Supreme

Court, except in a couple of instances,

tariffs and birthright citizenship, has

allowed the president to do this.

>> That's correct. This court has shown a

remarkable unwillingness to hold the

executive branch accountable to the

constitutional limits that it is meant

to operate within.

I'm running out of words to describe how

dangerous it is to be in a situation

where the actions of the executive

branch are not being effectively checked

or challenged by either of the other two

branches, but that is the situation we

have found ourselves in.

>> Obviously, the administration is making

the argument that the president has the

authority to build this ballroom. But is

there any convincing legal authority or

precedent that contradicts what the

lower courts have ruled, which is that a

project like this needs congressional

approval? In other words, do the

plaintiffs have a really strong argument

about Congress's role here?

>> Yes. I mean, the the circuit court that

ruled on this issue expressly said that

Congress has constitutional authority

over federal property and that it was a

problem that Congress had not authorized

this project. And the Supreme Court did

not find otherwise. All the Supreme

Court really said was that this

particular plaintiff couldn't challenge

it.

>> What I also find a little puzzling is

that usually you have an injunction that

will preserve the status quo as the

lawsuit goes on, but this is an

injunction that is allowing the ballroom

to go forward. It's already 65% built

and by the time this gets back, if it

ever does, to the Supreme Court, it'll

likely be done. So, it's not preserving

the status quo.

>> No, it is not. And I personally,

although I cannot read the justices'

minds, um I can't obviously speak for

them, but it doesn't seem to me that the

court as a whole is really trying to

manage or maintain the status quo here.

It's pretty clear to me that they're

very willing to allow the construction

to proceed, understanding that that

means it will be nearly impossible to

undo and that effectively the president

has just been granted the authority to

do what he should not have the authority

to do.

>> This administration mentions national

security. It seems to me in almost every

argument there's a national security

reason for what they're doing. I mean,

did the majority here actually buy that

there's a national security reason for

this ballroom? That was something that

wasn't mentioned until well after the

construction started. In fact, President

Trump wanted to build a ballroom at the

White House during Barack Obama's

administration.

So, building the ballroom came first and

then claims of national security

reasons.

>> National security is one of those

phrases that the administration likes to

throw out there because they believe

that it grants them almost unlimited

powers. It's an easy way for them to

make the argument that they should be

allowed to do whatever they want to do

and because they're unilaterally making

these declarations of when there is or

isn't a national emergency, it's very

hard to put any checks on that. And

that's exactly why they use that phrase

so often. There is nothing inherently

national security related to a ballroom.

I understand that there's meant to be

something constructed underneath the new

ballroom that may be relevant to

national security, but that's a separate

question.

>> Trump is trying to remake DC in

different ways. He keeps trying to put

his name up on the Kennedy Center. I

mean, we have the reflecting pool. He

wants to build this arch. Will this

decision by the Supreme Court lead him

to start building the arch? Is the arch

next?

>> It could be. Like I said about the

justices, I can't understand or predict

what happens inside the mind of this

president or his colleagues, but it does

seem that the precedent here has been

set in a way that establishes for

practical purposes, if the president is

willing to move quickly enough, he will

be allowed to get away with it. And that

means we need Congress to step up and be

willing to do its job. If the Supreme

Court is unwilling to put any meaningful

checks on the authority of this

president, the only branch of government

left that is capable of doing that is

Congress.

>> Do you think that other groups can try

to sue over the ballroom or it's too

late for that?

>> I mean, it's theoretically possible that

another group could try. My hunch is

that the litigators, the lawyers who

brought this suit, did their best to

find the plaintiff that they thought

would be most likely to have standing,

but is it possible that there's another

group out there that might be deemed to

have standing? It's possible. I think

it's unlikely that that will happen.

>> It seems like this decision will open up

challenges from the administration to a

lot of these lawsuits to try to stop

Trump's construction projects. For

example, it's two preservationist

organizations that have challenged plans

to paint the granite exterior of the

19th century Eisenhower Executive Office

Building and the National Trust and

other preservationist and heritage

organizations have also challenged the

plan renovations to the Kennedy Center.

So, this Supreme Court decision on the

ballroom may have wide-ranging

implications. Thanks so much for joining

me, Tracy. That's Tracy Fight Love,

founder and executive director of

Lawyers for Good Government. Coming up

next on the Bloomberg Law Show. The

Second Circuit rules that high school

teachers in a Long Island, New York

public school don't have free speech

rights to hang pride flags in their

classrooms. I'm June Grasso and you're

listening to Bloomberg.

Should high school teachers be able to

hang pride flags on the walls of their

classrooms or put up pride stickers?

That question became a federal case when

three teachers took a Long Island, New

York public high school to court for

ordering the removal of those pride

flags and stickers.

>> These teachers had flags and stickers as

pride. They weren't using the classroom

as a pulpit to lecture. They weren't

even incorporating it into their

classroom curriculum.

>> It's very clear

that the plaintiffs don't have a First

Amendment right to decorate their

classroom walls with personal political

symbols.

>> Their case ended up at the Second

Circuit Court of Appeals, where the

attorney for the teachers, Cheryl

Berger, argued that the pride flags and

stickers constituted the teacher's

speech protected by the First Amendment.

While the attorney for the school

district, Brian Sokoloff, argued that

the classroom decorations constituted

speech of the teachers in their official

duties as government employees.

>> When the teachers had their flags and

and stickers displayed here, it was just

a demonstration of pride. They're not

displaying it towards imparting or

foisting any messaging upon the

students.

>> Her speech, the flag, uttered as part of

her job, is not protected by the First

Amendment.

>> The Second Circuit unanimously sided

with the school district and upheld the

lower court's dismissal of the lawsuit.

Joining me is First Amendment expert

Timothy Zick, a professor at William and

Mary Law School. Tim, is there a general

rule for what can be put up in public

school classrooms?

>> I mean, there are lots of cases about

student speech, right? So, I'm thinking

of the Supreme Court has decided a

number of cases about the sort of scope

of student speech, right? So, this

involves faculty or teachers and their

rights, free speech rights, as they

pertain to in this case, the classroom,

but not the curriculum, but instead the

sort of blackboards or bulletin boards

and walls and doors and those sorts of

things and what they put on them. There

is no hard and fast rule for that,

right? And certainly there's no Supreme

Court case that's about these specific

facts. So, what the Second Circuit is

doing is it's applying a sort of

doctrine that applies to the free speech

rights of public employees generally.

And these are high school teachers, math

teachers, and others. And it's their

speech that's at issue. So, that's what

the court is doing. So, in some sense

it's addressing a a novel issue.

>> The teachers here made several

arguments. First, they argued that

ordering the removal of the flags and

stickers violated their free speech

rights.

>> Yeah, so they argued that the pride

flags were a form of what's called

symbolic conduct or expressive conduct

that conveyed their political speech.

These are people who are out as gay

individuals. So, their argument was, you

know, by forcing us to take these things

down, that violates our free speech

rights. And they added, you know,

there's a sort of discriminatory element

to this cuz you're not making people

take down other things from the walls.

So, you're singling us out based on,

they alleged in their complaint,

viewpoint. And the court rejected that

argument entirely, rejected all their

arguments. But that one in particular

implicates this idea of, you know, the

speech rights of public employees. And

there's a case called Garcetti, and

that's the Supreme Court case the

court's relying on the most. And in

Garcetti, there was an assistant

district attorney who was writing memos

for search warrants. And he came across

a warrant that was problematic, and he

brought that to his boss's attention in

a sort of whistleblower way. And he was

sanctioned or disciplined for that. And

he said, well, it it violates my free

speech rights to discipline me for that

speech. And the court's answer was, when

the public employee creates speech as

part of their so-called professional

duties, when the speech owes its

existence to the job itself, when they

go to work, these are different ways the

court phrased it, when they go to work

and they create speech that they're

being paid to create like the memo in

Garcetti, then the First Amendment just

flies out the window. It just doesn't

apply to that speech at all. So, whether

you're arguing it's just a straight-up,

you know, you're taking down my

protected speech or you're

discriminating based on viewpoint, none

of those arguments go anywhere if the

speech essentially belongs to the

employer and that's where the court

lands. It says, you know, that speech on

the walls and on the doors

is in essence part of curricular speech.

And the First Amendment doesn't restrict

the public employer, the school

administrators, the principals when they

deal with and restrict that kind of

speech. So, that's what happened to

their free speech claims and everything

else just sort of flows from that.

>> The Supreme Court has ruled that

students have free speech rights at

school.

>> Oh, yes. So, the court had a case called

Tinker back in the 1960s

said that students do not shed their

free speech rights at the schoolhouse

gates. And in that case, the students

were wearing black armbands to protest

the Vietnam War and they were

disciplined, punished for wearing them

in violation of school policy and the

court said, "You can't discipline these

students. The First Amendment protects

their political dissent unless what

they're doing creates a material and

substantial disruption in the classroom

or with respect to the school's

functions."

So, it's clear that students don't shed

their First Amendment rights and this

court, the Second Circuit, says neither

do teachers. We're just saying this

speech in particular is not protected

speech and they drew a distinction

between the things the teachers are

putting on the walls and the doors and

say a pride flag lapel pin or a

photograph of their same-sex spouse.

Those the court said are likely

protected speech. That's not something

the employer owns or has plenary control

over, but when it comes to creating a

classroom environment, which is how the

court characterized this speech, the

employer controls.

>> The teachers also claimed that they were

denied equal protection.

>> Yeah, so part of that is being singled

out based on the sort of viewpoint of

the speech, but they also alleged they

were singled out because they're gay.

And the court said there's nothing in

the complaint that sort of sheds any

light on a claim of of so-called animus.

In other words, you haven't alleged any

facts that would support the claim that

this policy was the result of or was

purposefully discriminatory against the

class of individuals based on that

characteristic, sexual orientation. So,

the equal protection claim, they said,

is also dismissed as the district court

dismissed it. They're just upholding the

district court. Then they made some sort

of human rights claims for

discriminatory claims under federal law

and state law, and those went the way of

the discrimination claim that I just

discussed.

>> I mean, do you think this is a solid

opinion?

>> I mean, it applies faithfully, I think,

what the court said in Verducci, with

regard to public employees. I mean, some

might think it's a bit of a stretch to

say what goes on the walls is part of

the curriculum. So, it's pretty clear

there that, you know, district officials

and others would have control at the

high school level at least or elementary

school level over what's taught. But,

extending that to what goes on the

walls, you know, some might think

stretches things a bit or as the court

characterized it, creating a classroom

environment. I suppose that in a math

classroom, one might expect to see

equations or great figures in math from

history or something like that. That

seems to be the sense in which the

court's saying, "No, no, no, this speech

is all about a classroom environment."

When teachers put things up in the

classroom, that's being done pursuant to

their job responsibilities.

And that is something that the employer

can control. And I guess, you know, if

you think about it, that would make

sense. You know, if that were the case,

then all kinds of political speech could

go up on the walls, right? You could

have MAGA speech or anti-MAGA speech,

and teachers could claim, "Well, that's

all, you know, part of my political

expression." And so, I think

pragmatically, it's persuasive, right?

And probably with respect to Garcetti,

too. The one thing that concerns, you

know, academics like myself is

Garcetti's application to instructor

speech in the classroom because if

Garcetti is taken literally, it would

mean that my teaching and my scholarship

are also controlled by my employer

because that's what I get paid to go to

work and do. And so, in Garcetti, the

courts are the ones that issue. It says,

"We're not addressing in this case what

happens with respect to university

professors or presumably graduate

professors who have academic freedom and

tenure and those sorts of things." So,

they kind of put that aside. This is not

that case, either. These are high school

teachers, and they don't have the same

protections as university professors,

but, you know, it's just another place

where this Garcetti case is sort of

shown up or popped up, and it

extinguishes free speech claims. And to

some people, that's disturbing enough.

>> Is this a unique case, a novel case?

Have you heard of anything similar to

this uh across the country?

>> I haven't heard anything about walls and

doors, but there's certainly been

questions about, you know, assignments

that teachers might give to students or

how they grade them. You know, the

contours of this kind of doctrine in the

high school and elementary context is

just not clear. You know, I think I've

come across some cases about clothing or

jewelry or lapel pins or religious

symbols, uh those sorts of things. But,

this is just a sort of unique factual

context, I think.

>> Tim, before I let you go, I wanted to

ask you about the First Amendment issues

being raised in a lawsuit by two media

organizations

against President Trump over this

subscription service that's charging up

to $100,000

a month for priority access to Trump's

Truth Social posts.

>> You know, putting aside securities laws

and other laws that this may violate,

the news organizations, the nonprofits

are alleging in their complaints that

when you offer this kind of early access

or exclusionary access to some but not

others, you violated their right to

receive information, in this case

governmental information. So, there is a

the First Amendment right to receive,

not just a right to speak, and they're

invoking that right as news

organizations that follow his posts,

some even analyze his posts, right? And

so, they're making that argument.

They're also arguing that the posts that

the president puts up on Truth Social or

what are called public fora, and that

argument is, you know, you can limit

speech in a public forum, this kind of

resource, but you have to meet sort of

requirements, right? There has to be

some kind of important governmental

interest, and you have to narrowly

tailor whatever restriction you have and

leave open ample alternative channels

for receiving the speech, and they say

it fails that test, the sort of time,

place, and manner test. And then they

make a final argument that says this is

an unconstitutional condition. It's

essentially extortionate. You're making

a benefit available, but on an

unconstitutional grounds because the

news organizations say we we can't

afford it, and even if we could, we

wouldn't compromise our objectivity and

our professionalism

by signing on as subscribers.

>> Trump Media defended the service saying

the information is technically public

and no different from subscription APIs

offered by other major media platforms.

>> Well, they keep ignoring that the

president is different and that his

official participation in this scheme,

I'll call it, makes this a

constitutional issue.

>> We'll wait to see how they answer the

complaint. Thanks so much, Tim. That's

Professor Timothy Zick of William & Mary

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,

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www.bloomberg.com/podcast/law.

And remember to tune in to the Bloomberg

Law Show every weeknight at 10:00 p.m.

Wall Street [music] time. I'm June

Grasso and you're listening to

Bloomberg.

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