This is Bloomberg Law with June Brusso from Bloomberg Radio.
Demonstrations against the Israel Hamas war have wreaked havoc on college campuses across the country, escalating in recent weeks as pro Palestinian demonstrators refused to remove encampments and administrators turned to police to clear them by force, often resulting in violent clashes.
I'm Gontain Daywen Gibson, the police captain for the University of Colboy of Los Angels and your right deplayers to be about mamos bring up. Maybe you do not do so, you may be arrested or subject to other constructions.
At UCLA's campus in Los Angeles, police warned the more than one thousand protesters for over a loud speakers that there would be arrests if they didn't disperse. Chaotic scenes played out in the pre dawn hours today when officers in riot gear confronted demonstrators who wore helmets and gas masks. At least two hundred people were arrested and from the White House, President Joe Biden, in warning against violence, said the protests put to the task two fundamental American principles.
The first is the right to free speech and for people to peacefully assemble and make their voices heard.
The second is the rule of law. Both must be upheld.
The protests spotlight the difficulty of balancing the right to free speech with the need to provide a space where students feel safe joining me is constitutional scholar Michael Dorf, a professor at Cornell Law School. Let's start with the basics. Mike, explain the difference between First Amendment rights at public versus private college universities.
Sure, the Constitution applies to the government with respect to state universities. That's pretty clear. Because state universities are arms of the state. Private universities are not bound by the Constitution and therefore not bound by the First Amendment. However, there are at least two ways in which we need
to qualify that. First, most colleges and universities in the United States, as a matter of their own internal organizing principles, some of which is protected by contract with students, faculty members, et cetera, adhere to First Amendment or First Amendment like principles. That is to say, freedom of speech is not only part of our constitutional system, but it's an important value for higher education you see it in practices like academic
freedom and so forth. So in that sense, whether it's imposed the government or voluntarily undertaken, and principles of free speech are pretty much universal on college and university's campusits. The second way in which I would qualify it is that in some places that's actually imposed by law. So, for example, in California, there is a state law called the Leonard Law that says that even private universities must abide by the strictures of the First Amendment, at least
with respect to matters of student discipline. And so you know, the unrest you saw at UCLA and USC isn't really very different in terms of how we think about that in terms of free speech in virtue of that state law, even though UCLA is a state university and USC is private.
Let's talk about what the First Amendment protects and what it doesn't protect. It doesn't protect unlawful conduct.
That's a little circular, right, that is to say, of course, it doesn't protect unlawful conduct. But part of the point of the First Amment is it tells us what conduct can be made unlawful. The way I would put it is that the First Amendment protects speech and other expressive activity, primarily against government interference or where it's voluntarily undertaken, private university interference that is based on the content of the speech. Right.
So the critical distinction is between what are sometimes called time, place and manner restrictions. Right, you can have your rally in this place but not that place, at this time, but not that time without amplification except under certain circumstances. Those are about how you are making your point, and generally the government has considerable leeway to restrict that so long as it does so reasonably, versus content based restrictions. You can't have a rally for this side, but you
can have it for the other side. Right, And that's the sort of basic principle that's operating here. The government can restrict speech, but not based on its content, and when it does so, it has to do so reasonably, meaning leave open adequate alternative channels of communication and so forth.
Let me give you an example, an anti Semitic chant. Would that be protected under the First Amendment?
Strange as it may sound, the answer to that question is yes. In most constitutional democracies the answer would be no. But in the United States, what is sometime is called hate speech, is not unprotected in virtue of the fact that it is hate speech. The leading case is a case from the US Supreme Court in nineteen ninety two called rav against City of Saint Paul, which said that
the First Amendment does not include an exception for hate speech. Now, I should qualify that by saying that an anti Semitic chant, under certain circums stances could be proscribable harassment. So if you think about racial or sexual harassment at the workplace, which is forbidden by Title seven that's the nineteen sixty four Civil Rights Act, or at a federally funded college or university, which means just about every college and university
in the country. Racial harassment is prescribed if a college university takes federal funds. It's just what all of them do. They're not permitted to tolerate racial harassment. And Department of Education guidelines define anti semitism, Islamophobia, and various other forms of hatred that you might think correlate with religion but have some sort of ethnic and therefore racial component. It
defines those as covered by Title six. So if the chant rises to the level of harassment, then it is forbidden by Title six, and the university is not only permitted, but obligated to stop it. And now the question that naturally raises is does the First Amendment contain an exception for harassment? The Supreme Court has never decided that question. Lower courts have assumed that the answer to that is yes,
and I think that is the correct answer. That is to say that what is defined as harassment, which is sort of creating a hostile environment based on raise or sex and so forth, is proscribable. That is to say, the First Moment doesn't protect that. And you have to ask, well, what's the reason for that. Why is it that if there is no exception to the First Moment for hate speech, why is it that the government can forbid harassment that
takes the form of hate speech. The answer to that, I think is that the government can't forbid harassment generally where harassment consists simply of saying offensive things, But it can do so when it's targeted in circumstances where someone can't just sort of look the other way. So if a neo Nazi group or white supremacists want to have a march through Charlottesville, for example, they're protected by the
First moment in doing so. But if they want to do that at the workplace of particular individuals, then those people are a kind of captive audience at work. And the crucial question, then, I think, for current purposes, is to what extent is a college or university campus more like a workplace where there's a kind of captive audience rationale for restricting what would otherwise be offensive but first protected speech versus more like just the public streets and
public parks and so forth. I think that's a question to which we don't have an answer, but it's sort of at the heart of the clash between the First Amendment and antidiscrimination principles.
There have been protests on college campuses all the way back to the nineteen twenties, I think, perhaps reaching a height in the protests against the Vietnam War in the sixties. But are the current protests different because many Jewish students feel threatened by the anti Semitism that's sweeping across college campuses and these protests, so.
Yes, to the extent, and there is a real extent that the demonstrations and the encampments include anti Semitic speech that does distinguish nineteen sixties Vietnam War era campus activism, where there were certainly students who didn't oppose the Vietnam War and may have therefore disagreed with other students' protests, but they didn't feel like they were the target of
those protests. So that is a distinction. But let me then also say that, you know, the fact that people feel threatened by something is of course always unfortunate, but that usually isn't enough to shut down other people's speech
if it isn't actually threatening. And so I think it would be important to distinguish people who are saying or doing actually threatening things or things that create a hostile environment because they're anti Semitic, from people who are there simply opposing the Gaza war and urging divestment or whatever it is that they're demanding of the colleges and universities. So, yes, that is a distinction, but I don't think it distinguishes all of what's going on now from earlier periods of
campus activism. Coming up next on.
The Bloomberg Law Show, I'll continue this conversation with Professor Michael Dwarf of Cornell Law School. Have the courts provided a clearly defined line to mark when's speech and protests are no longer peaceful and lose First Amendment protection. And later in the show, we'll talk about day six in the hush money trial of Donald Trump. I'm June Gross.
When you're listening to Bloomberg. Demonstrations against the Israel Hamas war have reached havoc on college campuses across the country, escalating in recent weeks, and police have arrested more than two thousand people, according to the Associated Press. I've been talking to Professor Michael Dorf of Cornell Law School, what about these encampments that have sprung up, I think starting
at Columbia, but I've sprung up across the country. Some campus protesters consider their encampments to be a form of speech.
So that actually is just not true. I mean, of course they mean to express a message through the encampments, and it's a demonstration of their seriousness of purpose, So I don't want to deny that. Of course they're doing it to make up. But that doesn't mean that colleges and universities lack content neutral grounds for objecting to the encampments. Right.
I mentioned earlier that it is permissible for the government or in the context of a private university committed to freedom of speech, the university administration to enforce content neutral, time, place,
and manner restrictions. And one form of manner restriction is if you want to use the public space to have a rally or to habits and speeches, you apply for a permit, You do so at a time when it's not going to be totally disruptive to the rest of campus life, and you know, and then they have to issue it to you if and they can't deny it to you because they disagree with your message. Depths fair enough, and in the encampments all as far as I know,
violate the colleges and universities content neutral rules. Now that's not to say that they're being enforced necessarily in a content neutral manner. It is to say that there is a completely legitimate rationale for saying you can't have an encampment, regardless of what side of whatever issue you're supporting. There's a Supreme Court case that involves almost literally that question.
Is the case called Clark against Community for Creative Non Violence, the case in which a group of people wanted to also did set up an encampment on the Washington Mall to dramatize the problem of homelessness in America. So it's certainly a worthy cause, and you can see how setting up an encampment would express that message. But it violated a National Parks rule. But you couldn't camp accept in designated areas in the National Parks, and the Washington DC
Mall is run by the Park Service. The case goes up to the Supreme Court, and the Supreme Court said, yes, they're expressing a message, but the no camping rule is a content neutral rule, and here there hadn't been a showing that the government was telling the protesters, don't have
your encampment because of hostility to their message. So if the current protesters want to make a persuasive case that they've got a first moment right to be there, I think they would need to show that the colleges and universities that are telling them they can't be there are doing so because of disagreement with their hostility to their message. And it's you know, I don't have a view about
whether that showing they could make. I would need to know a lot more of the facts at you know, each of the places where there was that kind of conflict.
There have been more than two thousand arrests across the country. Let's use Columbia, though, as an example, because I think that's where the arrests started. Let's say these students are charged, Do they have any defense based on the First Amendment?
Say so, that's a complicated question, because their right to free speech as against Columbia is of course contractual right. Because I said that Columbia adopt free speech principles voluntarily, it's not imposed by the First Amendment. There is a New York State law that governs discipline for various reasons, but it doesn't really create a free speech right if they are prosecuted. And my understanding is a lot of
people are being released. Although I don't know what's happening with the latest rounds of arrests, I know that was
true of the earlier round. But if they are prosecuted, in order to have a successful First Amendment defense, they would need to show that they were being selectively prosecuted by New York State or New York City because of their message, as opposed to because they were engaged in criminal trespass and we're told to leave and give an opportunity to leave didn't and it's notoriously difficult to make out a successful case of selective prosecution, and so I
think the answer is very likely no, especially because my understanding is the New York City Police only moved in at Columbia's invitation. So even if we think Columbia is acting because they don't like the messages, I don't think it's established. But even if we thought that, that doesn't mean that New York City is proceeding because they don't like the message. As I said, the NYPD only goes in once they're invited. You can think of it in the following way, right, that is, there is a law
against criminal trespass. If somebody comes into your apartment when you're not there, and then you ask them to leave, and they refuse to leave, and you call the cops, the police come and they remove them, doesn't matter what your reason was for calling the cops. Maybe you didn't like that they were there because they were saying things that you found offensive. That wouldn't convert the police action in removing that person into a violation of the First Amendment.
As far as what the administrators are doing here, do you think there's a better.
Way for of course, yes right, I'm not endorsing the calling of the comps as a wise ways for Columbia or UCLA or any of these other places, certainly not the University of Texas, where you know, the governor seems to have sent them in. But I'm not saying that that's the best way for an administration to handle these demonstrations. At the very least, you would want there to be
lots of de escalatory steps taken. You know, I understand that in some of these campuses there were negotiations that were going on, and apparently they didnt lead to very much. But again, that's a question for university administrators. I think it's a tough question because part of having content neutral
rules means enforcing them in a content neutral manner. And so while of course you want to avoid suspending, much less subjecting to criminal prosecution your own students, if you don't enforce the rules even handedly, you potentially set yourself up for a free speech challenge in some later case. So again, you know, I'm not sure what the right answer is. I'm kind of glad I'm not in university administration.
I think it's a very difficult position to be in at any time, but especially now, because there are all sorts of conflicting pressures. I'm just trying to give you what I understand to be the background law on the question.
I mean, as part of the problem here, there's so much, you know, political pressure, starting with the hearings in Congress.
That's right. I mean, arguably everything we're seeing over the last couple of weeks is a consequence of the House Committee, specially represent in that of Stephonic calling the Columbia University president to testify and her then giving answers that sort of didn't really satisfy anybody, but put her in a position where I think she felt she had committed to cracking down, and then the crackdown, which of course was completely counterproductive and led to the encampments sprouting up all
across the country. Now that's not to say that some other triggering event might not have caused this, or not to detegrate the underlying concern of the protesters about the conduct of the Gaza war, but it is to say that there are lots of politicians, administrators, and others who have acted in ways that seem to have heightened the conflict rather than attempted to have a conversation.
What's the hardest part of this analysis of what the First Amendment protects and what it doesn't.
I mean, I think the truly difficult pieces we've already talked about. That is, you know, the place at which you draw the line between permissible free speech and prescribable harassment. The one thing I would add to that is that it's complicated by the fact that there are you know, many participants in these encampments, and so you know, in New York, you know, you saw Mayor Adams complaining yesterday about outside agitators sort of infiltrating the Columbia takeover of
Hamilton Hall and the protests generally. And you know, that's an old problem, especially on the political left, that you have movements that attract people who have views that are sort of within a range of sort of within a standard deviation or two of the center of public opinion, and then you have people who are truly radical, and not just radical in their substance views, but in the means that they want to use, who then attach themselves
to these movements, and that can then undercut the other folks. And so, you know, in addition, to the question of how do you protect students who feel, in some cases justifiably threatened by the protests without you know, shutting down people's right to express themselves. There's also the question of how do you separate out the people who are really engaged in harassment or threats what have you, from people
who are just there legitimately to protest. And I think that's a very very hard question.
The line is not clear. The Supreme Court has never clarified the line between the two.
No, I mean, so the scrit has never face to case in which the issue was somebody is being charged with racial or sexual harassment, whether it's an employer for failing to shut it down, whatever, and there's a claim
of free speech. On the other side, there are lower court cases that in Supreme Ware cases that seem to just accept that it's permissible for the government to require private employers, private universities, et cetera, to restrict harassment, or even public universities to restrict harassment and harassment includes creating
a hostile environment. But they don't directly address the question of you know, well, what if the basis for finding that it's a hostile environment is that people are engaged in protests that you know, express a viewpoint but also hit home with other people in the community. Yeah, that is unexplored territory. There's academic writing on it, but again no definitive Supreme Court case. So two other things. One is, I want to be clear, I'm speaking on my bi
half as a constitutional scholar. I am in no way representing the views of Cornell University or its administration, which you know I think that's always true, but especially now, I want that to be clear. And the second thing is I very rarely give legal advice on air, but I am now going to give legal advice to all university presidents throughout the country. If you're asked to testify before Congress about any of this stuff, don't do it
unless you have a subpoena. That's my advice, because no good can possibly come of it.
Sounds like good advice, because it certainly hasn't in the latest cases. Thanks so much for your insights, Mike. That's Professor Michael Dwarf of Cornell Law School. Coming up next on the Bloomberg Law Show. We'll take a look at day six, So the Trump hush money trial. I'm June
Grosso and you're listening to Bloomberg. Juris in day six of Donald Trump's hush money trial heard perhaps the most colorful piece of evidence presented to them so far to connect Trump to the money payments at the center of his criminal trial in Manhattan. It was a recording of Trump discussing with his then lawyer and personal fixer, Michael Cohen, a plan to purchase the silence of a playboy model who said she had an affair with the former president.
And I spoke to Alan about it.
When it comes time for the financing, which will be listening, you will have to no no, no, no no, I got no no no.
Joining me is Dave Ahrenberg, the state attorney for Palm Beach County. This morning there was a hearing, another contempt hearing, and part of what Trump's defense showed was all the times that Michael Cohen had attacked Trump, and their theory is Trump is allowed to respond to these kinds of attacks.
Yeah.
The reason why you have this gag order is in part to protect witnesses. It's also to protect jurors, but it's to protect witnesses from intimidation. And what Trump's lawyers are saying is that you can't intimidate Michael Cohen. He gives as good as he gets, And I think that's actually a decent argument. Michael Conan is not your typical witness. He's not going to shy away from the spotlight because of what Trump says about him, because they've been going
at each other for a while. So I think this is another reason why if Trump is sanctioned for the violations of the gag order, because he is violating it, it'll be these small fines. He's not going to be wearing an orange jumpsuit anytime soon.
Also, you know, he didn't criticize David Pecker, who was the first witness, the former publisher of the National Choir, but he said things like, David Pecker be nice.
David Pecker is a really compelling witness because he and Trump have remained friends over the years. He doesn't have an AXA grind. The only potential bias with David Pecker is that he's under a non prosecution agreement. So Trump's lawyers have said that, ay, you're doing this is save your own hide. But Pecker referred to Trump as a mentor, and he still considered him a friend in his testimony,
which makes his testimony even more powerful. But the bigger question is one you raise, why isn't Trump attacking Pecker because he attacks everyone who goes against him, and Pecker has been a devastating witness. And I think the answer is Trump is transactional. He doesn't want to attack someone who knows where the bodies are buried. He worries that if he goes after Pecker, Pecker could come after him even more strongly than he has already.
An unusual thing that's going on here is I believe it was the fourth witness, Ronograph, Trump's longtime personal assistant. Trump is paying her legal fees.
We've seen this before. He paid Alan Weislberg's attorney's fees while Weisselberg was supposedly testifying against Trump in the previous criminal trial in Manhattan, and so we've seen this before. But it does get disclosed to the jury. The jury hears that and can judge her credibility based on the fact that the defendant is paying for her lawyers. She didn't give much up except for the fact that she had Stormy Daniels and Karen McDougall in the Trump organization's books.
Why he said that he never had an affair with either of them. He still maintains it, why are they in the corporations books. Defense also says, well, you know, she was trying out for the Apprentice. That's why Stormy Daniels at least was in the book. Doesn't explain why Careren McDougal is. But Jeremy Daniels said in her documentary that she was trying out for The Apprentice, and that's when Donald Trump was trying to pretend that, you know, he was going to help her get on the show
if she would get closer to him. So it does feed into her own story.
Pat Heurtado, who's our reporter who's in the courtroom, said that when Ronograf got off the stand, Trump got up sort of to go shake her hand and then realized that, oh, I'm in a courtroom. I think it sort of shows you how his you know, I'm the former president's side, I'm the billionaire side, and I'm a defendant.
That was a mistake by Trump because maybe that works in court of public opinion outside the courthouse to your followers, shows your gentleman, you do that in front of the jury and it looks like the witness is by towards you, and it looks like you're sucking up to the witness. It's not a good look for either the defendant or the witness. When the defendant is getting up from his chair and wants to give the witness a hug or a handshake, it's.
Not a good look.
So any credibility that she had, at least in favoring Trump is out the window. And it also gives more credibility to the negative stuff she said about Trump, which is when I say negative, I mean saying that Stormy Daniels and Caer McDougal were in the books of the Trump organization. So it makes her testimony against Trump that much more powerful.
There have been a lot of reports about Trump's demeanor in the courtroom, perhaps nodding off at different points or looking uninterested. So the jury is watching him every second, aren't they.
Oh yeah, jurors are very perceptive. They are watching everything, and when Trump is dozing off, you know, I don't know how they're going to perceive that, but I can tell you that makes it harder for Trump after the fact to say that he's running against sleepy Joe Biden. I mean, it sort of guts his attack on the president by call him sleepy Joe when you're the one sleeping in this courtroom seemingly every day of the trial.
Another interesting thing, the second witness was the archivist at c SPAN and apparently the defense is not stipulating to any kind of evidence. So explain why the prosecution has to call these people.
Normally you just have a stipulation that you could introduce certain records because they're obviously real, they're legit. But the defense is trying to block them at every step of the way, forcing people to come in and testify to things that were stipulated to. In the last Trump trial, the one with Leticia James, they were stipulating the things all the time over there, but in this one he's not. And it just shows you that he wants to delay this matter. That's his best defense, and this is his
attempt at delaying. You know how I also know that delay is his strategy. Aside from everything we've learned thus far, is the fact that he's complaining that the trial's going too quickly, the jury selection is going too quickly. But at the same time he's saying, but I can't be on the campaign trail. This trial's keep me from the campaign trail well, which is it is a trial going too quickly or too slowly.
And also it does slow down the trial. I mean that is a tactic of the defense too, so that the jurors are not so interested in these witnesses. But I think the prosecution is trying to balance that with witnesses who are interesting, like the lawyer who's on the stand who represented both Stormy Daniels and Karen McDougall.
The prosecution is doing a great job, and I think the case is going much better than most people had expected. David Pecker, the first witness, was really powerful, and that is a good lesson for those young lawyers out there and those in law school. You want to put on your best witnesses first and last. You want to have an initial shock, and then you want to leave them
the jurors with something in between. You can do the nuts and bolts, the more boring witnesses, the archivists, the banker who talked about how the loan was structured, that was given to Michael Cohen. But occasionally, to keep the jurors awake, you want to put in the really compelling witnesses, like Keith Davidson, he's been great. Now the big witness to consider it'll be Michael Cohen. I think he'll be
a middle end, but not at the end. You don't want to leave with him because that's the last gasp I think for the defense, which it's not going well for them, But if they can expose Michael Cohen as a liar and a perjurer and a felon, and the jury goes along with that, then the prosecution's entire case could be in trouble.
It seems like Michael Cohen is an easy witness for the defense to cross. I mean, everything's out there.
Correct, but there's something called corroboration. You may not believe Michael Cohen, and he may have lied in the past, but he's got all his corroboration now. And by the way, the reason why he was convicted of perjury previously was because he was lying to protect Donald Trump, So that'll come out. But also you now have the Keith Davidson, you have David Pecker, who have corroberated what Michael con
is going to testify to. So is everyone lying or maybe just maybe Michael Cohen is telling the truth under oath, and so far, everything I've seen from him in interviews outside the courthouse shown him to be a pretty credible and compelling witness.
So then do you think the defense has to sort of prod him enough for him to lose his temper?
Oh?
Yeah, they're going to try to get under his skin, and the prosecution will be working with him to try to prepare him for what's coming. But it's different when it's for all the marbles and you're on the stand and this is it and you feel like you're being unfairly attacked by a person that he hates, a person who led him to prison. That's why he went to prison. Donald Trump did not go to prison for the thing that Michael Cohen went to prison for, even though Trump
was an unindicted co conspirator at the time. So you can see why Michael Cohen is en rage and he just god has to chill and he has to just answer the questions that are asked and not come across as unlikable, because if he's unlikable to the jury, the jury just may say the entire case is unlikable and unwinnable.
Do you think Stormy Daniels comes before Michael Cohen or after.
Oh, that's a good question. I don't know that answer. But the Stormy Daniels testament will not be the last one either, because she also is a flawed witness. I mean, she has in the past sent letters swearing that she didn't have an affair with Donald Trump. She is an adult film actress, so whatever you want to say about that line of work, it doesn't have a lot of
jury appeal. And she also has some unusual thinkings about like what like space aliens or like goes or ghouls or something, So they're gonna bring out all that stuff. But just like Michael Cohen, she comes across as credible when you see her in outside interviews. I don't know
whether she goes before Michael Cohen or after. I think they want to put Michael Cohen in where she's sandwiched in with other helpful witnesses, so that that's not the last impression you have of the key witness who also has a lot of flaws.
So tell us about Keith Davison as a witness. Why is he there?
Well, he's there because he not only represented Stormy Daniels, he represented Karen McDougall. This shows that there was a pattern. It wasn't just a one off with a payment to Stormy Daniels. This was about protecting Trump's election chances. And that's what Davidson is testifying to that this was not about protecting Milania or Avanka from finding out about an affair.
This is a coordinated attempt through Keith Davidson, through David Pecker, through Donald Trump, and through Michael Cohen to help Trump win the election. And there's this very powerful text message that came out in trial where Keith Davidson texted, what have we done after Trump wins the election? Acknowledging that everything they did was to help his election and now it came to fruition and now there's buyer's remorse.
In most cases, the defendant's family members are there at trial in a show of support for the defendant. For example, think about Sam Benkman Freed. His parents were there every day of the trial, sitting behind. In this case, we're on day six and there was only one day when someone from Trump's family, his son Eric, showed up at trial. I mean, I have to ask why aren't they there? And does it matter? Well?
It does matter because you said earlier correctly, that jurors notice these things. Yes, jurors notice when your family's not there to support you. Why aren't they there? I mean they have to ask Donald Trump about his relationship with his family, because when your father, when your husband is on trial. Maybe they don't think that this really poses an existential threat to his future freedom. Maybe they don't really think this is going to lead to any prison time.
But if that guilty verdict has read, then it's a game changer. He may never serve prison time for this, but the polls show that a guilty verdict would swing enough voters to prevent him from returning to the White House. So it is a big deal.
Tomorrow, Day seven. Thanks so much, Dave. That's Dave Ahrenberg, Palm Beach County State Attorney. And that's it this edition of the Bloomberg Law Podcast. Remember you can always get the latest legal news by subscribing and listening to the show on Apple Podcasts, Spotify, and at Bloomberg dot com, Slash podcast, Slash Law. I'm June Grosso and this is Bloomberg