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Welcome to a special edition of the Bloomberg Law Show. I'm June Grosso. Ahead in this hour, we'll look at some of the high profile cases the Supreme Court heard in twenty twenty three and one they might hear in twenty twenty four. We'll discuss double Jeopardy, trademarks and baseball's antitrust exemption. All that's ahead, But first make.
Sure that every ring, single justice up in that court knows we are here, we are watching, and we demand that they put our lives over the interests of the gun lobby.
Hundreds of protesters took to the Supreme Court this fall to support the federal ban on domestic abusers having guns, and inside, the justices seem to agree, suggesting during oral arguments that they'll preserve the ban and it didn't even seem like a hard issue. Both liberals and conservatives sounded persuaded that the ban is in line with the long standing practice of disarming dangerous people, and the defendant undoubtedly
fit in that category. Here's Chief Justice John Roberts questioning his attorney.
You don't have any doubt that your client's a dangerous person, do you.
I would want to know what dangerous person means.
That's iding someone who's shooting at people. That's a good start.
My guest, is Second Amendment expert Adam Winkler, a professor at UCLA Law School. Let's start with the big question. Did it seem like justices across the board were inclined to uphold this federal gun ban.
It did. It felt very one sided in the Supreme Court, and it felt like almost all the justices, if not all the justices, were inclined to uphold the federal ban in this case.
This is the first test of last year's ruling in Bruin that established a constitutional right to carry a handgun in public. So in order to understand it, I think we have to take a look at the historical analysis test established in Bruin that's caused so much confusion in the lower courts and led to them striking down gun control laws that have been on the books for decades. So tell us about that test, Adam.
In the Bruin case, Justice Thomas's majority opinion said that for gun laws to be constitutional and permissible today, they must have historical analogs in the seventeen and eighteen hundreds when Second Amendment was adopted and the Fourteenth Amendment was adopted, incorporating the Second Amendment to apply.
To the states.
As a result, courts have really struggled over the last year or so trying to find gun laws back in those days that are sufficiently analogous to many common sense, mainstream gun laws that we have today. Truth be told, many of our gun laws are kind of twentieth century inventions, bans on felons possessing firearms, bans on the mentally ill possessing firearms, and the issue into this case ban on
domestic abusers possessing firearms. These are laws that don't have any obvious analog in the seventeen and eighteen hundreds, and so this law was struck down by the Fifth Circuit, just like courts around the country have been striking down gun laws for lack of a clear historical precedent.
So then how did the justices get around that lack of a clear historical precedent and all end up seemingly in favor of this bank.
First of all, I think it's important to know what Elizabeth Proligar, the Flicitor General, began her oral argument with by noting the statistics that show that domestic abusers with firearms are an incredibly deadly mix, and that forty eight states and the federal government have prohibited domestic abusers from possessing firearms, showing that what she intended to do was not just rely on the history and tradition, but on the common sense idea that some people are too dangerous
to have firearms. But the court seemed to be inclined to do is allow the government to frame their gun
laws at a higher level of generality. You don't have to show that there's a history and tradition of domestic abusers being prohibited from possessing firearms, and of course there isn't a long history and tradition of that, but maybe you could show that there's a history and tradition of prohibiting dangerous people from possessing firearms, and domestic abusers are just a modern day understanding of people who are just too dangerous to have come.
Did the Liberal justice does seem like they wanted to use this case to revisit that history based test. Here's Justice Katanji Brown Jackson.
What's the point of going to the founding era? I mean, I thought it was doing some work, but if we're still applying modern sensibilities, I don't really understand the historical framing.
It did seem like she was pressing that it's very hard to defend this domestic violence abuser ban when people are subject to a restraining order in light of the history and tradition of which that the Bruin Court offered. Although Bruin said that you should look for analogous laws, I think that at the end of the day, the government is hard pressed to draw a very close analogy. Instead, the analogies are very General and didn't exactly apply on point.
Did a majority of the conservative justices seem to want to limit any decision to the facts here? Justice Neil Gorsitch said at one point, do we need to get into any of that?
It did seem like several was a this is, including Justices Gorsich, Thomas, and Alito. We're looking for ways to narrow the consequence of ruling against Rahemi in this case and in favor of upholding the law, talking about whether there might be different as applied challenges that someone could bring, or whether there might be some common law defenses that one could bring to a charge that one was possessing a firearm illegally in violation of the domestic violence restraining order,
and several of the justices released. Justice Alito expressed some discomfort with the idea that these domestic violence restraining orders could be very long lasting and yet don't have very serious procedural requirements that correspond with broad notions of due process.
Perhaps, the Solicitor General said the Court should use the present case to give more guidance to the lower courts and to correct lower courts quote profound misreading of the bruined decision. Do you think we'll get any major statements out of this ruling.
I think that's going to be one of the big questions. Is this a really narrow ruling that just cobbles together a majority, or is it an opinion that will provide more guidance to the lower courts. Justice Kagan specifically asked about that and about the necessity, and the Solicitener General had a very clear and precise answer that there were three errors being committed by the lower courts. They were only looking to regulation and not looking to other historical sources.
They were looking at regulation, but we're really looking for twins rather than for historical analogs. And also that the absence of regulation should not always be read against the government, especially when a problem like domestic violence was not really thought of as a problem back then.
So I admit that I find this historical analysis test with Second Amendment cases just bordering on ridiculous. Were there any clues as to whether the Conservatives remained behind the historical analysis that Thomas put in place.
Well, I think that the Solicitor General made a very strategic choice not to challenge the history and tradition test of Bruin but instead seek to, if anything, recapture its fluidity, its ability to be useful to uphold laws, not just to strike down laws. And so she was not asking
the court to abandon the history and tradition test. Rather, she was saying that the lower courts have been misapplying that test, and that to capture the true essence of that test means that you should approach the issue the way she did, at a slightly higher level of generality, focusing on dangerousness rather than looking for historical precedence of domestic abusers being prohibited access to firearms.
If you had to guess, would you guess that it's going to be a limited opinion or a broader opinion.
If you were to guess, I would say this is likely to be a nine to nothing, maybe eight to one or seven to two opinion. And I think because of that, the larger the majority, the less likely it is to be very far reaching. That it may be one of these cases that gets assigned to Justice Gorsich to just do as little damage as possible to the bruined test. But I do think that it's no matter how big the majority is to uphold the federal law here.
If indeed, the Court does uphold the federal law here, it will be very good news for gun safety reform advocates. They've been struggling to defend gun laws in courts, bans
on guns without serial numbers, bans on assault weapons. So if the court does move to this higher level of generality it says that government can prohibit people who are dangerous from having firearms, it would provide a basis for defending a lot of our core gun laws that we really rely on in modern twenty first century America.
And Adam, we also saw that the Supreme Court agreed to decide the fate of the federal criminal ban on bump stocks, the attachments that let a semi automatic rifle fire much like a machine gun. What do you make of that? Do you make anything of it?
No?
I don't make much of it. I think that is really an administrative law case, and it's about wh the administrative agency went too far in interpreting its powers under the Gun Control Act and other federal statutes that regulate firearms. And so I think that although they both deal with firearms regulation, both these cases they're very different. One's the Second Amendment case that's going to be decided on Second Amendment grounds and have huge impact on how other Second
Amendment cases are handled. Whatever the Court does on the bump stocks will be much more important for administrative law and the scope of administrative agency authority under the Constitution.
A lot of administrative law cases this term. Thanks so much, Adam Best, Professor Adam Winkler of UCLA Law School. A note. Michael Bloomberg, the founder majority owner of Bloomberg LP, the parent of Bloomberg Radio, is a donor to groups that support gun control, including every Town for Gun Safety. Coming up the fight to trademark Trump too Small. I'm June Grosso and this is Bloomberg.
You're listening to Bloomberg Law with June Grosso from Bloomberg Radio.
You're listening to a special edition of Bloomberg Law as we look back at some of the high profile Supreme Court cases last year and look ahead to twenty twenty four. I'm June Grosso.
He's always call me Marco.
And he's hollow me like sixty two, which is why I don't understand.
Well, he's hands five two.
Have send for hitmans.
I've never heard of this one.
Look at those hands? Are they small?
Hands.
You may remember in the early days of the twenty sixteen presidential election when former President Donald Trump and Florida Senator Marco Rubio were engaged in some locker room talk over the size of Trump's hands. Now it's part of the case before the Supreme Court. Attorney Steve Elster says he has a free speech right to trademark the phrase trump too small to use on T shirts. The US Patent and Trademark Office disagreed, and it appears that the
Supreme Court also disagrees. At oral arguments. On Wednesday, Justice Is Across the ideological divide suggested that denying Elster a trademark for the phrase does not violate his free speech rights for a host of reasons. Justice Katanji Brown Jackson discussed the point of trademark.
Law, and trademark is not about expression. Trademark is not about the First Amendment in your and people's ability to speak. Trademark is about source identifying and preventing consumer confusion.
Justice Sonya Sotomayor said that not getting a trademark does not infringe on his.
Speech because you're not talking about stopping the speech. You're talking about not receiving government protection for activity that you would like to heighten protection for doesn't stop you from selling. It doesn't stop you from selling anywhere as much as you want.
Justice Neil Gorzich pointed to history.
But at the end of the day, it's pretty hard to argue that a tradition that's been around a long long time since the founding, you know, common law type stuff, is inconsistent with the First Amendment.
And the Chief Justice said that giving him a trademark would have the effect of restricting the speech of other people.
Because the whole point of the trademark, of course, is to prevent other people from doing the same thing. So if you win the slogan trump too small or whatever, other people can't use it. Right.
The case revolves around a section of the LANIMAC that requires written consent to use the name of a living person in a trademark. Joining me to help explain it all is intellectual property litigator Terrence Ross, a partner at Katon Muchen Rosenman Terry tell us about the procedural background of this case.
Mister Elsert thought trademark registration from the United States Trademark Office and the Trademark Examiner handling the application denied it as a violation of the landam Act, which is the trademark lause. Mister Elster then appealed within the Trademark Office, which confirmed the denial, and mister Elster took it to the United States Court of Appeals for the Federal Circuit here in DC. The Federal Circuit unanimously reversed the decision
of the Trademark Office on constitutional grounds. It found that, at least as applied in this case, section ten point fifty two sea of the Landom Act was unconstitutional in light of the First Amendment, and the Trademark Office decided that this was important enough to appeal to the Supreme Court of United States.
Elster's lawyer told the court that the government's sole interest in denying the trademark is protecting the feelings of famous people, but that's not a legitimate reason to burden protected speech. How did his arguments strike you? It sort of struck me as being weak in many ways.
I thought it was extraordinarily weak. My reaction was that mister Elistair's counsel did not do a very good job. It was pointed out in the press that this was his very first argument to the Supreme Court, but quite frankly came across as a first a pallid argument at a sword. And indeed his response to this question was really a hail mary, because he was unable to answer
a previous question from Justice Kagan. Justice Kagan had asked him for any case that he could think of in which the conveying of a government benefit in a position neutral viewpoint had been held to be unconstitutional. You know, it was crickets in the room.
He had nothing, nothing except maybe a sinking feeling.
Yeah, when just so Maior asked this, he went for his press conference sound bite, which was, Oh, we can't be protecting the feelings of famous people. Oh you know, that's actually not what this statute is about. And it helps sometimes to read the actual wording of a statute. Here fifteen Usc. Ten to fifty to see essentially bars registration of a trademark. That quote consists of, or comprises a name, portrait, or signature identifying a particular living individual
except by his written consent. This applies to everybody, applies to you, applies to me, applies to the listeners. A living person's name and legs can't be used to promote another product, and this is fundamental to trademark LOK. Going back into the common law is known as passing off, you know, its claiming that some famous person had blessed
this product or was associated with it. And so it was very much sort of an absurd response to Justice Sodoma Org and really reflected a core problem with their argument, which Justice Thomas identified quickly. He asked just straight out what's the burden on free speech here, and really didn't get an answer because simple fact that, as you said,
you people are already using the slogan everywhere. The fact that you don't get registration does not mean you can't use the slogan, and mister Elster himself has already been using it. All it means is that he's been denied the benefit of registration, which is the ability to exclude, in certain circumstances, third parties from using his slogan.
And the Chief Justice John Roberts pointed out that giving him a trademark would have the effect of restricting speech by other people who want to use that slogan, and I.
Think it's a fair point to make that in effect, by granting the trademark registration here because of the unique category in which it sought. It really does limit other people's free speech because this slogan Trump too small is apparently commonly used by folks who are opposing former President Trump's candidacy.
So, Terry, we always say you can't tell from their oral arguments how the Court is going to rule, But it seemed to me that justices across the ideological spectrum we're against giving this phrase trademark protection.
I agree with that. My count was that there was a clear majority skeptical of granting registration, and I agree with your comment. It's hard to always read or arguments, but in this case, particularly, the tonalities of the justice's questions really reflect it pretty hardened positions antagonistic to any type of register.
This.
My count had Justice Thomas, Justice Sodoma or Justice Kagan, and Chief Justice roberts As all skeptical, if not outright saying they were opposed to registration. Here. In addition, I had Justice Gorsich and Alito disagreeing with mister Elster's council on different grounds. They historically are opposed to this notion that trademark confers a government benefit. But my count, that's six justices who seem pretty firmly opposed to registration of
this trademark. And I really couldn't count maybe the other justices as being in favor. They just seem to not express an opinion one way or the other. So sick zippy is a pretty good starting point for the government here.
So that leads me to the question, how did a unanimous panel of the Federal Circuit allow this trademark?
June. We could spend a lot of time on decisions by the Federal Circuit where I practice a lot, by the way, and the level of disrespect according to those decisions by the Spring Court in the United States. True, I mean, the mere fact that this decision came out of the Federal Circuit probably starts off with your points in the government's favor here, because the Supreme Court just doesn't respect decisions most significant decisions coming out of the Federal Circuit.
The history of reversal is just phenomenal. And so I mean, those of us who pressed the Federal Circuit regular basis say, okay, you get granted search the orri out of the Federal Circuit, you got a good chance of winning. This is another great example.
Thanks so much, Terry. That's Terence Fross of Catain Euchen Rosenman.
This is Bloomberg Law with June Grosso from Bloomberg Radio.
You're listening to a special edition of Bloomberg Law. I'm June Grosso. Now we'll take a look at a case the Supreme Court could here in twenty twenty four involving America's favorite pastimes, the sounds of baseball, not only the national pastime and a more than ten billion dollar industry, but also the only sport in the country that's exempt from the anti trust laws. And now some minor league teams are asking the Supreme Court to eliminate baseball's anti
trust exemption. Why, as they put it in one brief enough. Already joining me is anti trust expert Harry First, a professor at NYU Law School. Harry tell us how baseball got this anti trust exemption.
Well, this is one of the most reviled exemptions from the point of view of anti trust lawyers unless they represent baseball companies or teams or leagues, and even the courts don't like it. So it came about originally because of a decision in nineteen twenty two by the Supreme Court called federal baseball, and this is an opinion written by Justice Holmes, Oliver Wendell Holmes, distinguished jurists, and it was an effort to actually push out some competing leagues.
And Holmes said that, well, any trust laws don't cover this. Baseball is neither commerce nor interstate commerce. It's just sport and it just takes place locally. So even though players even then travel from state to state, and there was a lot of money involved, perhaps Justice Holmes as the Boston Brahmin disdain baseball. It was sort of like us now raised with a certain kind of entertainment reviewing video games? What is that? And is there so much money involved?
Are you serious? So maybe that was Polme's reaction. I don't know, But in any event, that was a decision that any trust laws didn't apply. So that's nineteen twenty two. The Supreme Court reaffirmed that decision in case called Toolston
in nineteen fifty three involving New York Yankees. My memory is correct, and the Court said, even though the decision was sort of dubious when made, it's now precedent, and all aspects of that decision had been undermined even in the intervening period, the courts had a rather narrow conception of what constituted inter state commerce, perhaps in nineteen twenty two, but it had expanded clearly in the New Deal era,
and any trust cases had gone along. And there's no doubt that baseball should have been considered interstate commerce all along, and certainly a business. But the court said in business of baseball is exempt from any trust laws from the Shermanac. And then the third case in this is a case
called Flood against Kune. This involved Kurt Flood, who didn't want to be bound by what was called the reserve clause, which prevented players once they were under contract from going to some other team even after the contract was over. And this was an opinion written by Justice Blackman. This
goes beyond it put of any trust law. If you teach a course in law school about precedent and the need to follow precedent, you know you would want to teach this opinion because it's a payon to baseball and the greats of baseball and how they flourished under this system. I mean, it was very clear that Harry Blackman was a great baseball fan and loved all these players. And now you come along, Kurt Flood. You're going to challenge
the system. Give me a break. You know, everyone prospered, So on the basis of the doctrine of starry decisives, let the decision stand. The Supreme Court refused to overrule Tulsen and Federal Baseball behind it, saying, no, we've had this exemption, this decision too long, no matter what we think of it, legally were bound. Now there's no one who will stand up for this, as I said, except
people who represent baseball teams. Now, there is one final little bit of a change, which is Congress passed the law in nineteen ninety eight called the Kirk Floodeck, which took out of the exemption, put back into any trust any contracts involving the employment of major league baseball players at the major league level. So just for major League baseball players like Kurt Flood, that would now be subject to sort of the normal rules of anti trust and
labor law for that matter. But these clauses aren't used anymore anyway, so it's sort of in some sense factually irrelevant, but maybe a little legal issue. Congress left everything else that this law doesn't apply to anything else involving baseball. So, in effect, the exemption, which Congress never approved, very different from all other exemptions that we have. Virtually all other exemptions, Congress never approved this one. The exemption continues.
Does baseball operate like a monopoly? And is that unlike football or basketball or hockey.
So we could argue whether football and hockey and all of those operate like monopolies, separate argument. At least they are all subject to the anti trust laws. So all sports professional the NCAA, you know, college sports, all sports have been subject to the anty trust laws. In the court, sport after sport will say, you know, baseball is its own thing. You're covered. So they are not free to violated any trust laws. Now, whether what they do is
legal under d any trust laws is another story. And your quest is a really good one because in the most recent Supreme Court case involving organized sports, which involved the NCUBA with NCAA against Allston and the effort of the NCAA to suppress the amounts of compensation to quote what they like to call student athletes, and basically they wanted to argue in the Supreme Court that you should really treat us differently, and the Supreme Court wrote, no,
we're not treating you differently. You don't have any reason to. And Justice Gorsuch for the majority sort of dropped a little hint about this and mentioned that the Supreme Court in the past had balied, this is his words, with what looks like an exemption for professional baseball, but we're not going to give it to you, folks. So you andCA are fully subject to any trust laws, and your
conduct is subject to any trust laws. So the Court seemed to have recognized, as this decided twenty twenty one again that baseball is a bit of an aberration.
In this case, you have minor league teams who are eliminated alleging a violation of the Sherman Act caused by a horizontal agreement between competitors that has artificially reduced and capped output in the market for MLB teams affiliated with MLB clubs, and a federal judge dismissed it because of
the baseball exemption right. Federal Judge Andrew Carter said, plaintiffs believe that the Supreme Court is poised to knock out the exemption like a boxer waiting to launch a left hook after her opponent tosses out a torbid jab it's possible. So this would squarely present the baseball exemption to the Supreme Court.
So that's correct, that's what's seeing up the interest at the moment. The case went to the Court of Appeals, which just sort of summarily agreed with the trial court. Great quote that you read there. And now the minor league teams who alleged a violation by being excluded from an agreement that the majors have made which limits the number of minor league teams they can affiliate with, are now asking the Supreme Court to take the case. So
the first question is will they take it? And ssumably if the Court takes it, it means that they're interested in overruling the three cases that I mentioned. And the Supreme Court, you know, doesn't lightly overrule cases.
Well maybe I should say recently.
Yeah, And the court has overruled on occasion longstanding any trust precedent that parties had followed for many years. The case is called Legion, which involved the legality of setting resale prices. The Supreme Court overruled an older case which had stood for ninety years, even longer than federal baseball.
So it's possible that the court would would take this case, but I would wait to see if the Justice Department expresses desire to have the court take the case and overrule these other three cases.
Thanks so much, Harry yusor Harry First of NYU Law School. Coming up, Double Jeopardy. I'm June Grosso and this is Bloomberg.
This is Bloomberg Law with June Grosso from Bloomberg Radio.
You're listening to a special edition of Bloomberg Law as we look back at some high profile Supreme Court cases from twenty twenty three.
They're tough for Louisiana Libby.
You shoot me, they'll give you the guest cheaper.
No, they won't.
It's called double jeopardy.
I learned a few things in prison.
Nick I could shoot you in the middle of Marty gra and they can't touch me.
As the next law professor, I can assure you she is right.
The Fifth Amendments double jeopardy clause. We all know about it from TV and the movies. So why did Georgia prosecutors want to try Damien mckelrath a second time after a jury had found him not guilty of the malice murder of his adoptive mother by reason of insanity. Well, there's a twist. The jury also found on Michail Rath guilty though mentally ill, of felony murder and aggravated assault, and the Georgia Supreme Court ruled that those inconsistent verdicts
were illogical and threw them out. But a majority of Supreme Court justices across the ideological spectrum seem to agree that once a person has been acquitted of a charge, the matter is closed. Here's Justice Neil Gorsuch, and.
We do not ever talk about whether they make sense to us. They may be products of compromise, they may be inconsistent with verdicts on other counts. We don't question them. And if this is a first time this issue has arisen here, shouldn't that tell us?
Something joining me? Is former federal prosecutor George Newhouse of Richard's Carrington. George tell us about these inconsistent verdicts.
So the basic facts are a delusional defendant believed that his mother was trying to poison him and as a result, stamped her to death. Called nine to eleven full of the dispatcher what he'd done and why he was right to have done it. He went to trial on three counts, by the way, and that's where this comes up to the three separate charges. The first one under Georgia law is called ballae of murder, which is equivalent to a first degree murdered, always the most serious charge, the one
that typically can carry him capital punishment. And then there were two other counts, a felony murder rule, which means that he killed someone in connection with committing a felony, in this case, an aggravated assault, and so the third
charge was aggravated assault. You might ask why to prosecutors bring three separate charges when one act occurred a killing, And they do that because sometimes they want to present the jury with the option of convicting on a lesser offense if they think they might have a problem with
the principal offense. And that's exactly what happened here. The jury deliberated and the defense was he was insane, so he lacked the criminal in Kent to commit murder, and the jury deliberated and found him not guilty by reason of insanity on the first count, saying he was crazy, but on counts two and three, the felony murder and the aggravated assault. The jury found that he was sane and convicted him. The State of Georgia, unhappy with that, went to the court and said, well, we need a
new trial because these verdicts are logically inconsistent. You can't be crazy on one count, the worst count, but sayings on the other counts, And that went all the way to the Georgia Supreme Court, which agreed. The court said the verdicts on these two different counts are logically repugnant, and as a result it vacated the not guilty verdict and told the state that they are free to retry him.
And that's what went up to the Supreme Court whether there should be an exception to the double jeopardy clause, and the exception would allow if the verdicts were logically inconsistent, which jury verdicts are, by the way, frequently, they'd be allowed to retry.
In this and justice course, it seemed particularly fervent about respecting the jury's verdict of acquittal.
The rule in this country for the last two hundred and thirty years of justice courses pointed out, is you only get one chance, and if that jury verdict comes back, I'm not guilty, there can be no retrial. We don't. The court system does not second guests acquittals. So for example, if the acquittal is based upon what's called jury nullification, they simply ignore the evidence. Where that verdict is illogically inconsistent between two different counts, the court system is not
allowed to second guess that. What usually happens, probably happened in this case was the inconsistent verdicts were product of compromise. Justice courses to address that. They may be products of compromise, they may be inconsistent with other verdicts. We Justice Courses said, the court system does not question those verdicts, and that has been the law in this country for two hundred
and thirty years. Inconsistent verdicts happen all the time. I tried one as a prosecutor, and the judge said, well, we have two verdicts. One is inconsistent with the other, and the case is finished, so double jeopardy apply.
Thanks George, that's George Newhouse of Richard's Carrington. Thanks for listening to this special edition of Bloomberg Law on Bloomberg Radio. I'm June Grosso. Stay with US today's top stories and global business headlines are coming up right now now,