This is Bloomberg Law with June Brusso from Bloomberg Radio.
Two and a half years of sending somebody unwanted emails when that person has consistently tried to block them and tried to stop them, some of those emails being pretty violent, die don't need you f off permanently. Others of those emails suggesting pretty strongly that he is watching the person. Only a couple of physical sightings. It was that you and the white cheap So I want to take it as a given that this can be objectively terrifying.
Justics Elena Kagan described the online threats made to a Colorado musician for years, threats that made her so fearful that, after trying to block them and getting a protective order, she canceled planned performances. Billy Kounterman was convicted of stalking and sentenced to four and a half years in prison. The Supreme Court was considering Counterman's appeal and his argument that his speech should have been protected by the First
Amendment because it wasn't what's known as true threats. Many of the justices indicated that the speaker's state of mind was important, and whether the speaker intended to cause fear. Here's Justice Sonya Sotomayor.
But here the court and the prosecutor argued that the intent was irrelevant, that he couldn't present any evidence about his intent. Correct, that is exactly what about his mental state about what he thought? They precluded him completely from doing that.
But several justices like Brett Kavanaugh expressed concerns about the implications for cases involving stalking, domestic violence, school threats, and the like if the court were to require an approach based on the speaker's intent, a.
Defense like the one that would be present with your men's ree get too easy for someone to say, I was just joking, I was just kidding. And therefore threats that would be really quite dangerous in terms of leading to the next step of actually carrying through with the threat will not be addressed.
Joining me is mc snaila, a partner with the Complex Appellate Litigation Group MC explain what's meant by a true threat.
So, if it's determined to be a true threat, then the whole question of what the constitutional for which is where the prosecution sort of goes away saying, Okay, if it's a true threat, then we're not concerned about first A mement implications because we don't see societal value and protecting in that kind of speech, because we're more concerned in that context about individuals fear from violence. You know
that that's speech and genders. So because of that value judgment, if it's a true threat, then we're outside of this whole question for cementa production.
And what was the core issue in this case?
In this case, the question is what kind of intent is required? As a constitutional matter? Is some kind of specific intent required to convict someone of stocking or crimes involving threats? And so if it is a true threat and we're outside that, you're not going to have any kind of requirement because the First Amendment doesn't put on another layer on top of the criminal statues or even
the civil statutes. So that's the question really a narrow intent question, but it has major ramifications, as the State of Colorado and the Slister General pointed out at arguments of what kinds of crimes will would be able to charge and what kind of crimes will go unredressed if a specific intent is required.
So in Colorado they look at whether the victim would reasonably experience the fear of physical violence because of the nature of the threats. So in Colorado they're taking it from the victim's point of view, and the defendant here says, you should take it from the defendant's point of view. What the defendants intent is, Well, it's kind.
Of both counterman and council says, Okay, that's fine if you have this objective reasonable recipient of the thread test in the law, but you need more than that. You also need to look at what was the intent of the speaker. Did the speaker know in making her comments that the reasonable person receiving them would interpret them as being threatening or fear physical violence as a result of that, And so they're really arguing kind of both of those requires.
So in this case, it's so over the top. She got a temporary restraining order, she stopped going outside. I mean, I don't understand how this could be considered not a true threat.
Yeah, I mean, that's certainly what we argued in our Meekas brief, And what we pointed out was the importance of the constellation of behavior that stocking statues in particular usually require two or three threats or overt acts. It's the pattern itself that gives rise to the stocking charge
or convictions. And here there were thousands of emails over many years and direct messages on Facebook to her, and many of those seemed to indicate that he might physically be tracking her also and had some threats within some of the discrete messages like die and things like that, which JEEF Justice Roberts pointed out it argument. But in his questions that argument, he took each of those statements that had particularly scary language in them and said, well,
would someone interpret this as a threat. Couldn't it be interpreted in some other way? Don't we need more context? And the context that we argued, and that is really part of stocking and domestic violence is the entire context
of that relationship and prior threats and prior behaviors. So, in other words, looking at one discrete direct message wouldn't be sufficient, because you'd have to look at the thousands of emails that happened despite her blocking this person on Facebook six times at least, thereby indicating hey, you know, don't reach out to me, and then the language in them escalates and indicates that there might be some physical
stocking conduct going on with it. So when you look at it, particularly in the context of the whole constellation of threats and behaviors and the doggedness and determination that this particular person seemed to have in communicating with her, and some of the things that the Cloister General as a prosecutor themselves in these kinds of cases at the federal level and Colorado were pointing out was yeah, you know, we look at this whole constellation.
What would we lose?
That's what the justicees We're asking if we adopt each of your standards, what do we lose? What's the harm? And both the SG and Colorado said, well, you would lose prosecutions or even charging the decisions by us, because we charge only when we think we're going to get a conviction, because otherwise we're very concerned that the victim of these of stocking will feel that the law cannot protect her, and so we only charge in the most egregious situations when we think we're very sure we can
get a conviction. And if you layer on some kind of specifican tounch requirement, there are a lot of what the SU called sort of you know, delusional or dbs stockers who go just close to the line to something that's actually threatening physical violence or like counterman. They claim, oh, you know, we thought we were okay, you know, we
didn't know. We didn't know that they didn't want to hear from us, even though to someone who was of reasonable mind would certainly have concluded that this person did not want to hear from you.
It's just so surprising to me that they use this case to try to get this issue out there.
Yeah, I agree with you do, and that's what we were kind of scratching our heads about too, because there was discussion about that, and certainly to me it was a really red flag. In the acl use brief, they drop a footnote saying nothing we say here would impact stocking convictions for conduct, and just the scurse that was trying to choose that to saying, oh, well, charges for stocking conduct wouldn't be impacted by whatever standard we put here.
But that presupposes that somehow stokers just limit themselves to one behavior. You know, most of them. There's a gradation from cyber stocking like this gentleman, to physical stocking of your house or home, to a whole wide variety of things in between. And it's not like they just select one method. So that's a little little bit of a dichotomy. I think that doesn't actually happen in real life. But I think that also this balancing and these challenges on
each side. I mean, Essice Tavanaugh and Justice Tagan seemed to be very sympathetic to the to Colorado's and the SGUs learned about this and seem to consider, well, this seems like true thrust to us, dude.
Most of the justices seem to be leaning toward the notion that the speaker's intent is important. Justice Sodo Mayors said that this Colorado man convicted of stalking wasn't given the opportunity to explain the intention behind the speech.
Yeah, that was an interesting part of the argument, which was the difference between being allowed to testify and explain whatever you want to explain in a case like this and having that be an element or a requirement that the prosecution proved that you specifically intended something. In other words, sure, you can go up and say that if you like, but as a First Amendment matter, you know, it's not required for the prescution to prove that kind of intent
beyond a reasonable doubt. That discussion came up because in this particular case, as a result of the conclusion that there was no First Amendment requirement for this specific intent. According this case ended up not allowing Tuntermen to testify about what he meant or didn't mean in this circumstance. Perhaps there might have been another reason they didn't do that, which is that he had two prior convictions for stocking other women, one of which had ended up in violence.
So perhaps they wouldn't want that to come out.
So does it seem as if the justices are going to end up requiring some kind of proof of intent in these cases?
There was one possible somewhat middle ground, which was a ground that we urged. If the court is going to require some kind of intent as a First Amendment matter, that at the most it should require a recklessness standard, a recklessness standard rather than specific intent with regard to knowledge as to whether what they were doing would cause
a reasonable person to bear violence. So that's an alternate standard also that the SG urged, and so that got a lot of airtime at argument in terms of would this be something that you might be a middle ground for The justices said in Maor, Gorsich and Alito, who seemed maybe somewhat skeptical of not having any intech requirement at all, and then those like Higgan and Kabnaugh who were sympathetic to the question of would you be impeding
prosecutions if you required some kind of specificond time.
It's an important case. Thanks so much, EMC. That's mc sun Gaila of the Complex Appellate Litigation Group. The Senate Judiciary Committee advanced seven Biden judicial nominees with bipartisan support, while skipping more controversial votes on others. As Democratic Senator Dianne Feinstein remains out for health reasons, joining me is judiciary expert Carl Tobias, a professor at the University of Richmond Law School. Senator Dianne Feinstein has been home in
California for nearly two months after about with shingles. How is that affecting the president's judicial picks.
Well, there's a lot of talk by different outlets in the press that this is holding up his nominees and it is delaying somewhat. But there was a hopeful sign, very positive sign today in the Judiciary Committee where they
held votes on people who had bipartisan support. So if any of the district nominees had the vote of any Republican member could move forward, and seven of them did today, and some of them had quite strong votes, like fourteen seven or twelve nine, thirteen eight, fourteen eight, so that is helpful. There were two or three who did not have bipartisan support and so they were held over and
didn't have votes. But even those people could go forward with a discharge petition, which means you need a majority vote on the floor. And so I thought this was a good sign that people, especially Lindse Graham, who's the ranking member, the highest ranking Republican on the committee, showed he was willing to work together and he voted for all seven of those and some of his colleagues did as well, and so that means that they're not being
held up. Now the question is will Senator Schumer schedule them as majority leader on the floor for votes and they won't take much time. They only need two hours of debate after cloture. So now we have twenty district nominees on the floor who could be confirmed, and we have still five appellate nominees on the floor who still need confirmation votes and debates, and the pellet ones are more difficult because you need thirty hours of debate time
after cloture. Some of them are considered controversial by GOP members. So I'm hopeful that this makes it much easier to move a number of nominees, and I think that will be happening soon, though I haven't seen much sign of it on the floor yet, but they just came back this week from two weeks away, so that looks more positive than some of the news reports that things are being delayed, because we could soon see twenty more district nominees approved.
So then, why did the Republicans make such a show of not agreeing to put a Democratic senator in Dianne Feinstein's place temporarily.
That's a really good question, and I think it just reflects the terrible partisanship and politicization that infects this process.
All kinds of reasons were given, but Senator McConn all sort of personified that everybody looks to him on the GOP side and then follows whatever he does as leader, and he basically said, we're not going to empower Democrats to confirm the small a fraction or some other term like that of nominees who are radical activists or incompetent, and so that's the position that most of the other GOP members took. And today what happened, I think refused
that to some extent. But that's the problem. They wouldn't extend the courtesy to Senator Feinstein, who's a long serving member and longtime colleague and very collegial and people genuinely like her. And that's what a number of the GFP members said. But it seemed like a very easy solution. The proposal was Ben Cardon, who had served effectively on the committee before from Maryland, is quite moderate Democrats. What happened today is a good sign that there'll be cooperation
for most of the nominees. Then moving them on the floor is critical, and I think that won't happen soon. Starting maybe next week.
President Biden tends to nominate Irma Carrillo Ramirez as the first Hispanic woman to serve on the Fifth Circuit Court of Appeals in Texas, and that is an appointment that got the support of both Republican Home state senators. So tell us how that worked out well.
Senators Corner and Cruz deserve some credit here, but they supported her. In twenty sixteen, when she was nominated by President Obama for the Northern District of Texas District Bench. And she had been served as magistrate judge now for twenty years and had been an assistant US attorney for five or six years before that and in private practice, so she's very experienced, very well qualified, but the GOP
majority refused to schedule her confirmation vote. I think she came out of committee very strongly in twenty sixteen, and the evaluation committee that Texas has had said in twenty six theme that she was excellent, and the Senator supported her then. So I think they're supporting her now for the fifth Circuit, and that's good to have that seat filled.
That should proceed very well. And the same day there was a nomination by President Biden of Anna di Alba, who's been on the Eastern District of California for ten months and is highly respected and was smoothly confirmed. So optimistic that she will move through the process again and be on the Nice Circuit.
Let's turn to Justice Clarence Thomas, and I want to ask first your opinion about the first report was about these lavish trips that he took with a Republican mega donor. But now there's also reporting of a property deal, So money changed hands with that same Republican mega donor and it wasn't reported. Is this a violation of the law.
Well, I think it is a technical violation because us all government employees are subject to ethics requirements in terms of reporting, and so I think it is clear that those should have been reported by the Justice. But twenty eight Usc. Fifty five, which speaks to conflicts of interest and says if there's an appearance that's sufficient, does not bind the Justices. It's the statute that binds all the other federal judges, district judges, appellate judges, and magistrate judges,
but not the Supreme Court. And so there's been some discussion of possibly asking the Supreme Court to adopt that kind of language and apply it to itself. I think, in fairness, the Justices at least say, and I think Thomas has said that they consult those ethics requirements in four fifty five, but they're not bound to do it. So this raises questions about reporting and whether it was
appropriate what he had done. And there are letters coming from the Senate Judiciary Committee specifically asking questions encouraging Chief Justice Roberts to open an investigation, and I believe there'll be Judiciary Committee hearings, and I think that some Senators have discussed the possibility of requesting that Justice Thomas come in and testify. Whether he will do that is not clear. Whether they will ask him to do it is not clear, So we'll just have to see what happens.
They've asked the Chief Justice to come in and testify. I mean, what are the chances that the Chief Justice is going to subject himself to Senate questions?
That's a good question. I don't believe he has testified since his own hearing in two thousand and five or two thousand and six when he was confirmed for the Supreme Court. But there's a long tradition of having justices go over and testify the associate justices, and they have done that almost annually. I think about the state of the judiciary in federal courts and those types of issues.
Will see what happens in this particular situation. People have pointed out that, of course, with the leak in the Dobbs case, that was sufficiently important to have an investigation, So wondering why there shouldn't be some kind of investigation of this question about whether the reporting requirements were satisfied.
Can they force Thomas to testify at a Judiciary committee hearing or do they have no power over him?
Well, they could request, and he can decide whether he will or not. If he doesn't, they could subpoena him, but ultimately it would be very difficult, and he might even be willing to litigate that question because of separation of powers kinds of questions. At best, it would likely take some time for that to happen if the Senate were to make that request and he were to deny it. So I think we'll just have to see what the
Senate does. But I think there'll be at least some hearing, though they wouldn't be as complete if the Justice doesn't testify.
The Democratic lawmakers forwarded their concerns to the US judiciary panel that handles financial disclosures, the Judicial Conference Committee on Financial Disclosure. What can that committee do, if anything?
Well, I think it makes policy. It's the policy making arm in the federal courts, comprised of the chief justices the top that too, but it has the chief judges of all the appeals courts as well, as one member elected usually district judge from all those appeals courts, So it's about a twenty five member body, and they do
make policy. In this particular committee, I think is asked with ethics and other questions about qualifications, and so the Administrative Officer of the US Courts, the Administrative arm forwarded the Senators and representatives letters over to that committee, and the committee may respond, It may not do anything, or
it may undertake some action in response. I think that's the committee out of which the recently revised standards that dealt with questions of gifts or whatever from private parties and talking about tightening those up just this spring. So it has some authority, but not at all clear that it has authority to investigate and take some action.
This has been widely publicized. The public's opinion of the Supreme Court has plummeted. What will this do if nothing is done about Clarence Thomas and he just now does what he was supposed to do years ago and files the disclosure. I mean, it just seems like the Supreme Court is above the law.
Well, people have said that, and a number of press outlets have made that argument or and criticized the justice in the system and said, why, you know, if all the lower court judges are subject to that, why shouldn't the justices be subject to twenty eight Usc. Four fifty five in terms of conflicts and appearance of conflicts? And I think it comes back to the reluctance of a coequal branch to basically legislate as to the Supreme Court, even as they Congress certainly legislate as to the lower
federal courts. But that's in the Constitution, and so I think that's the argument on the other side, that Congress may be reluctant to and may not actually have the power to. And of course the ultimate resolution of that where a check challenged would for example, imposing a code of conduct on the Supreme Court by way of legislation, the ultimate decision maker would be the Supreme Court justices themselves.
So it's difficult to get at that problem. The reputation of Supreme Court has been very much on the decline. All of the public data to that effect, the surveys show that it's at one of its lowest points in decades. And you know, it doesn't have the power of the purse or the sword, and really relies on the public to trust it in making these decisions, and those are unelected justices, and so it's critical to democracy that it have respect, otherwise its orders won't be followed or it's decisions.
It's critical for the society and the United States to have the utmost respect for the justices.
We'll see if the Chief Justice responds to this. Thanks so much, Carl. That's Professor Carl Tobias of the University of Richmond 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 podcasts. You can find them on Apple Podcasts, Spotify, and at www dot Bloomberg dot com, slash podcast Slash Law, and remember to tune into The Bloomberg Law Show every weeknight at
ten pm Wall Street Time. I'm June Grosso and you're listening to Bloomberg