Why Supreme Court Justices Talked About Taylor Swift

campus speech rights. Reminded Justice Elina Kagan of Swift's successful student against a Denver radio host for sexual harassment, where the pop star asked for only a dollar in damages, and she said, I'm not really interested in your money. I just want a dollar, and that dollar is going to represent something both to me and to the world

of women who have experienced what I've experienced. Kagan said Swift's case was similar to the case before the Court where two former students are suing Georgia Gwinnette College for nominal damages for violating their First Amendment rights. And Justice Amy Coney Barrett seemed to agree and just as Kagan's questions suggested that really what Taylor Swift wanted was, you know, vindication of the moral right, the legal right that sexual

assault is reprehensible and wrong. My guest is Harold Crent, a professor at the Chicago, Kent College of Law. How first, tell us a little bit about the case. The case is a First Amendment challenged by students to their college administrators for limiting the right of free speech. They had to do with someone who's a evangelical Christian who wanted to talk about he preaches Saith, and the university quenched

the speech. Therefore, you have precipitated a First Amendment challenge in court, and before it could be finally resolved, their college changed where duties could make speeches and broaden the opportunity for students, so in essence handing the plaintiffs of victory. But then the question was could they continue to get a court resolution that they were right under the Constitution and would be entitled at least two nominal damages and

the atorney's fees. And so far the Eleventh Circuit had held that the case was moved because there's no longer a continuing controversy because the university had changed his policy and that the idea of just the tourny's fee and normal damages would not be enough to keep the case alive, so they refused to address the merits. Does the government

or government ended these often changed policy following lawsuits. The government does not infrequently change his policies, and indeed, a great example that came up recently when New York City had an active, very tight gun controlled legislation which was challenging, and they fought it tooth and nail, But as it was getting close to the Supreme Court, New York City backed down and said, well, maybe this was too restrictive, and therefore, in essence mooted out the controversy, giving plaintiffs

all that they wanted, And the Supreme Court in that case refused to entertain the case by saying it was moved because New York changes policies, it was not likely to go back. So this in some ways to a cousin case in the sense that it asks what happens when a government changes its policy not likely to revert to the older policy. Can a core nonetheless continue to hear the substance of the claim because it's kept alive

by this notion of nominal damages. So it's a narrow case focusing on what really is nominal damages and should the judges have power to consider more constitutional claims, In particular, if nominal damages are alleged in the case. Before we get back to nominal damages, people might ask, well, why doesn't that case from last term where the justices said it was moot, why doesn't that control here? It's going

to be in the justice's mind. In that case, nominal damages were not sought, and so there was not an argument that the case was still alive because of the nonminal damages as there are in the Georgia case. But certainly what this case is about, it's about judicial power. Should judges be able to second guests and scrutinize more governmental bodies actions than otherwise would be able to the problem is, it's hard to quantify First Amendment speech in

our case, and the plaintiff wasn't allowed to speak. How

do you put a dollar value on that? Maybe you could say he had to walk fifteen minutes to a different forum and that would cost time, and time is money, and maybe he should have said it costs me thirty five dollars that I could otherwise be making in order to go to the other forum to give my speech, and the courts would entertain that they'd have to It's a traditional thirty five injury, isn't it more practical to say, we know that the restriction on speech damaged you, you

couldn't speak. It's hard to put dollar figure on that, So vindicate your claim by just saying its phenominal damages. And that's why this has become really a very intriguing case because it doesn't fall really on a conservative versus liberal lines exactly. It falls with the question of how much power should judges have to second guests and administration. So I think that's the axis under which the position we reached in the case. The school officials basically said, look,

there's nothing left for the court to do. Is that a strong argument? In one sense, it's true. The only thing left for the court to do is to decide the constitutional question and decide to give the planets a dollar each if they agree that their First Amendment rights were violated. Um. That is, on the one hand, you can say this is not with the need to address the constitutional issue in that context, and that's what Chief

Justice Roberts seems to be saying. But on the other hand, there was a very arguably serious First Amendment violation, and we may wonder what courts should arguably address that in order to give guidance for the future and to compensate the individual through nominal damages in light of the fact that their First Amendment rights allegedly were violated. In this case has groups that are often on opposite sides of issues, like the Americans Civil Liberties Union and the U S

Conference of Catholic Bishops uniting. And there were just two amiquest briefs in support of the College. How odd is that it's very unusual. And I think that any kind of interest group that challenges governmental action knows that its ability to get cases heard before the court depend upon a vehicle for keeping a case alive and normal damages is such a vehicle because it recognizes that there are dignitary harms caused by when the government violates your constitutional rights,

even if they're not quantifiable. I mean, there are dignitary harms that common laws trespassed, the violation of someone's trademark, and private individuals would get some kind of damages even if you couldn't prove actual damages. And that's in essence what the claim is here, supported by many Friends of

the Court's briefs. And also I think it's a recognition that we somehow don't trust government when they change policies that they're not doing it for the wrong reason, namely to avoid a judicial decision as to right or wrong. Taylor Swift came up in the oral arguments. I think it was a little bit of a surprise. Tell us

how her name came up. She relatively famously sued a Denver talk show host for sexual proprieties when he had her on the air, and she said, look, I'm not going to try to quantify the kind of damages that you caused me. All I want is a vindication in court that you acted inappropriately, and I'm going to do that by just asking phenomenal damages. She could have tried to characterize her injuries in terms of money figure, but she saw instead to say, I'm suing because of principle.

I want to be validated regally in that you evaded my autonomy, and she won't. So it's become one of the more famous recent cases phenomenal damages. And so the reason why Justice Kagan suggested this is to show that normal damages can play a very important role to vindicate the individual's injuries, even if it doesn't look like a traditional compensatory harm. Such as I have a broken bone, how much does it cost me to get to a doctor? Or my house has been ruined by a flood, how

much will cost to repair it. This instead is a notion that, yes, there's been an invasion of illegal wrong and that should be sufficient to continue a case. Even if it's otherwise it would be mooted out because of the change of policy of a government defendant. Now, some of the justice has expressed concerns that this could lead to a flood of litigation. If you allow these kinds of claims. There is no question that a ruling in favor of the plaintiffs in Georgia will result in increased

claims against government action. I don't think there'll be a flood. There's been no showing that there'll be a flood, but absolutely because they'll be more because, as you suggested earlier, there are a not insignificant number of times when government is sued, they realize that they have taken an untenable legal position, they'll change course. And if changing course will not get with the lawsuits, then course will more frequently be invited into the dispute. So, yes, that the margin

there will definitely be more suits that are brought. And indeed, because of the fact that nominal damages in some contexts will support an attorney's fees award, a decision in favor of the Georgia plantiffs would give plainests attorneys more incentive defined plainists to challenge government action that they think is illegal because they may, at the end of the day

recover a handsome attorney's FASA award. Now Chief Justice John Robert's question whether it would make a mockery of the courts mutinous doctrine if a plaintiff could stop a judge from throwing out a case by simply asking for a dollar in damages and he says, well, then you don't

have standing of got to throw the case out. You said, oh, well throw me throwing a buck, and then the judge is supposed say, yeah, well everything's fine now, doesn't that Doesn't that make a mockery of our Article three requirements. What he is considering is that it would limit the moutenous doctor And I think that Chief Justice Roberts is

right about that, but not totally. What you're saying is that an individual's right to go to court and say I want you to say that I was injured, just so I can have the satisfaction that you say that I was injured. You know, that is one way to frame the issue. And if you believe in a strong moutenous doctor and to limit the courts, that you only want to have the courts opine on these issues of

great constitution moment when they actually have to. Then you want to get rid of this case because there is no continuing dispute. So Chief Justice Roberts is right. And this goes to the whole question of judicial power. Judges will be brought into more controversies if they decide that a normal damages is sufficient to keep a case alive, probably not as many as the court fears, but at

least at the margin, more controversies. And so that's why this becomes a question really about judicial power and about how much you trust administrative and bureaucratic governmental entities. And I think that we may see an unusual alliance here.

So what kind of alliance of the justices might we see? So, for instance, we might see Justice Comy and Justice Corsets deciding in favor of sympathetic plainmus here because of their mistrust of government entities and their sympathy for individuals who might be harmed by a Biden administration, for instance, or who might be harmed because entities are not respecting the

religious interests. So it may be some traditional liberals such as Briar taken and so to my or that may make a pact or alliance in this case with some of the more conservative justices, because at the end of the day, this is about do you want these cases to go to court? And if you're the court, you may trust the court more than the political branches to

get these issues right. Let's say that the plaintiffs do win here with the opinion by the court, have to explain how this differs from the Second Amendment case we're talking about. The Second Amendment case did not squarely raised this issue. It is as a kind of a cousin of it. It could have raised the issue, but that's not what the court was focusing on um or the parties we're focusing on uh in the procedural posture before

the court. But there will be My prediction is that there will be discussion of that situation because the Court will want to explain or give guidance to what should happen if that Second Amendment challenge is raised again. Thanks Hal that's Harold Crant to the Chicago Kent College of Law. The Supreme Court has vacated the convictions of four men, including the one time King of Political Intelligence, in an insider trading case involving a scheme to profit from government secrets.

The Justice has sent the case back to the Second Circuit Federal Court of Appeals to take another look at its ruling in light of the Supreme courts so called Bridgegate case. You may remember the case that drew headlines and the scandal that helped to derail former New Jersey Governor Chris Christie's run for president, a politically motivated scheme that caused a traffic nightmare on the George Washington Bridge in and led to two of Christie's aids being convicted

of fraud. Bridget Kelly blamed Christie. Just because someone has the title of governor doesn't give them the right to mislead others. It's dishonorable and it only shows that person for the coward he is. The Supreme Court reversed those convictions last May. But what does that have to do with an insider trading case? Here to answer that question is John Coffee, a professor at Columbia Law School. Jack tell us about the so called King of Political Intelligence.

David Blazak was a former employee of the Center for Medicare and Medicaid Services, and when he left that agency, he became a consultant for Hedge Funds because Hedge Funds follow what that agency does, because it determines the profitability of all kinds of treatments that various medical and pharmaceutical companies provide. Now he learns that the agency is going to cut back on the amount that will pay for certain kind of cancer treatments. He tells that to his

Hedge fund clients. They sell short the companies that will be most adversely affected by that new ruling. They make a lot of money, They pay him a lot of money, and he gets convicted under a priority of charges. What was the essence of the prosecution's case against him and three others? The conduct would look to most people like pretty egregious insider trading. Well, you have misappropriated material, non

public information that is known at that agency. Believe they could just really give this information to people who might want to trade on it. There's all kinds of governmental information that has a dramatic impact on the price of securities. If you know in advance that the Federal Reserve is going to raise or lower interest rates, you can make billions. And thus the Fedal Reserve probably to keep that very

very confidential. And this agency basically had similar rules. But the guys who were friends and sort of alumni that agency had a way of lunching with their old colleagues and learning what was going on, and they got very valuable information. In the view of the prosecution, they were stealing, embezzling, or misappropriating that information from the agency. But then the

big surprise occurs. The Supreme Court decides what's called the bridge Gate case, and that says the government may not have any property interest any right to hold its confidential information private. So if you don't have a property interest, there can't be a property charge. And the case he'll go back to the second Circuit to see if a different theory can be worked out that does not offend

the bridge Gate decision. Just to be clear, the bridge Gate case did not involve insider trading of any kind involved, really just corrupt governmental action that was in a form of retaliation against the mayor of Fort Lee because he had not endorsed Governor Christie, and the Supreme Court said, that's not fraud, that's just politics. Explain why the federal prosecutors saw the Bridgegate decision and took the unusual step of asking the Supreme Court to remand the case that

they won. They saw the Kelly decision, and they saw the briefs come in from the party that sought sociary. The Supreme Court granted sociary on the defendants theory that Kelly controlled this case. So because the government has suddenly seen the theory of property being narrowed, they know this case is in danger, and the government that rather than fight on that line of battle, let's get the case for Amanda down to the Second Circuit and they can

write a revised opinion that ducks that problem. So what's likely to happen at the second Circuit? Specifically, the key charge here is something called securities fraud under section and that has two prongs, and one of those problems involves a deprivation of property and the other prong involves defrauding any person. I would suspect that the Second Circuit panel

they've already did convict. This guy will say, well, he's also guilty of that other prong in which you are defrauding some person even though you're not obtaining money or property. So that's just a prediction. I'm not certain that I'm right, but I think the government asked the case to be remanded even though they had one, because they thought a stronger theory could be written now that Kelly was the lord.

And so the Second Circuit will have no choice but to reverse itself rewrite a decision, because they are if the Supreme Court tells you to reconsider, you better reconsider seriously. Has a Supreme Court limited the take on the expanse of insider trading? Over the years now, the Supreme Court has been very much expansive and basically quite supportive of the prosecution. They do require that you have show a proof of a fiduciary breach if this is going to

be done under rule ten B five. And that's sort of the irony of this case because the prosecutors, while they used Rule ten B five, use several other theories that allow them to outflank the need for showing a

breach of fiduciary duty. And now those other theories are shown to have a problem because you've got to show at least some deprivation of property, and right now the government is not going to be able to convince the Supreme Court the confidential information of a government agency about what it's about to do amounts to property that can can have stolen. Norm Biddle, do you agree with that

that confidential you know, government information shouldn't be considered. I think we have to protect that so it will be protected if you get it through computer hacking or if you violate the espionage Statute by the stealing defense secrets. But I think lots of information is extremely valuable and would wreck havoc with the government. Think of the Federal

Reserve Board. If people could find out a week early that Federal Reserve we're going to raise or lower interest rates by defined amount, there would be a phenomenal amount of informed trading by people who would know information that the rest of the market would not know. You know, when Free Berrara was U S Attorney for the Southern District, we saw crackdown insider trading. How has that fared under the Trump administration. Well, the U S Attorneys have still

one cases the Southern District. It's a sort of independent agency. It called itself the Sovereign District in New York, and they haven't let the government in Washington directly control everything they do. Uh. And this was a case that was prosecuted years ago. The decision came down from the Second Circuit on the last day of two thousand nineteen. So

this was a prosecution that we brought before Trump. The Trump administration has not been particularly vocal about not bringing inside a trading cases, other kind of cases that they're much more conservative about. So I think the Southern District has persisted in bringing some inside writer trading cases, but not nearly as many as were brought under President Obama. Do you have any expectations about what will happen under a President Biden. I think we've got to go back

to the old pattern. I think the Democrats and most of the country doesn't see any value and insider trading, and they wanted those cases prosecuted, or at least the big cases prosecuted. And this was a case in which an awful lot of money was made and just to summon up you think that Blazac will end up with a prison sentence, even after the second Circuits. Well, I'm not going to predict the sentencing, but that is the normal sentence that even first defenders usually get a prison

term when they are convicted of inside the trading. I think that the Second Circuit can write a decision that skirts around the problems in the Kelly case and the RidgeGate case because they can find something not involving property was violated, such as a defrauding of an individual. You can say the agency was defrauded and cheated because they weren't allowed to persist in keeping their internal processes secret. Even though it wasn't property. You could say you devoted

the agency. I will see how they write it. I mean, maybe they decide they can't write a decision, but I think they've been giving the opportunity, and the U S attorneys Upice thought if they got a second chance, they would be able to write a decision that would would withstand an appeal based on Kelly. In the bridge Gate case, what about the three other people who were involved, Well, some of them have said guilty already, but they're all in the same boat. Those that are up there in

the Supreme Court are all in the same boat. Blaizac was the critical person because he was the person who got the information from the agency and gave it to the hedge funds. The hedge funds are basically doing that they're usually doing, trying to pay experts to get them information that the public doesn't know. So the case now returns to the Second Circuit Court of Appeals. We'll keep you updated on what happens there. Thanks so much for

being on the Bloomberg Laws Show. Jack. That's Professor John Coffee of Columbia Law School. And that's it for the edition of the Bloomberg Lawn Podcast. I'm June Grosso. Thanks so much for listening, and remember you can always get the latest legal news on our Bloomberg Lawn podcast. You can find them on Apple podcast and Spotify and wherever you get your favorite podcast. You're listening to Bloomberg. The counting of the counting ended the end of the