Weekend Law: Clancy Mistrial, Trump Ballroom & Pride Flags

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2:04mistrial. After a five week trial, about 38 hours of jury deliberations over seven days, three notes from the jury saying they were deadlocked and an emergency appeal to the top court in Massachusetts. Judge William Sullivan declared a mistrial on Friday in the case of Lindsay Clancy, who strangled her three young children in January of 2023. The trial was punctuated by dramatic moments, including the revelation on Thursday that the jurors were deadlocked 11 to 1 in favor of quitting Clancy, who claimed she wasn't criminally responsible for killing her children because she was suffering from postpartum psychosis. The defense attorney tried to get Judge Sullivan to remove that hold-out juror, but the judge refused. I don't feel that it is proper for me to side with one side or the other of the deliberations. I don't feel it's appropriate for me to say I agree with

3:10one juror or 11. Outside the courthouse, Clancy's lawyer, Kevin Reddington, criticized the district attorney and the hold-out juror. They know that they were robbed by one man for whatever his agenda was to stall seven weeks of the life of these other jurors. The Plymouth County District Attorney, Tim Cruz, said they haven't decided whether they'll retry Clancy, but their priority has always been to seek justice for the three children. I bring it all back to the child victims in this case. Quora, Dawson, and Callan. This was and has always been about getting justice for those three little babies. My guest is former federal prosecutor Robert Mintz, a partner, McCarter in English. Bob, the last few days of this trial were really unusual. Have you ever

4:12seen a defense attorney basically refusing to accept a deadlocked jury, even going to a higher court to try to get a stay to prevent the judge from declaring a mistrial? It is very unusual in this circumstance because the judge had already questioned the juror and concluded that the juror was not unwilling to follow the law, and at that point, there's really not much more that the judge can do. So to try to seek a stay by the defense here seemed to be rather puzzling because it's hard to imagine exactly what he was trying to accomplish. And the jury had already said they were deadlocked three times, so under Massachusetts law, he couldn't have sent them back to deliberate anymore. No, that's exactly right. And that is what the judge was concerned about because under Massachusetts law, you can give what's called a dynamite charge or a Rodriguez-Tue charge, which is basically telling jurors to go back to try to reach a verdict that they have as

5:15much information as any other jury might have, and that a lot of time and effort has been invested into the trial and they should go back and try to see if they can reach a unanimous verdict. But at the same time, the judge will always say that you should not surrender your beliefs, your convictions, and at the end of the day, if there is a disagreement among jurors so that there cannot be unanimous verdict, then there is a mistrial. And the concern that the judge here had, in this case, no doubt, is that if you continue to put pressure on a jury where one juror has already taken a position that they can't reach a unanimous verdict, and the other jurors agree, and you begin to apply excessive pressure to that juror, that creates an issue on appeal, because it looks like you're trying to steamroll that one lone juror and try to get them to change their position by applying added pressure to them, and that's why the judge can push, but only push so far, and then at some point the judge has no choice but to declare a mistrial, and that's

6:17exactly what happens here. The defense attorney tried to get the judge to remove that one holdout juror, after the other jurors said that he wasn't following the law on reasonable doubt, but reasonable doubt is a difficult concept, and obviously people can disagree about it. That's what a trial is about. How do you knock off a juror in that circumstance? Well, you can't knock a juror off simply because they don't agree with the other jurors and have come to a different conclusion based upon the evidence. What the defense lawyer is trying to argue is that the juror who is the apparent holdout is simply refusing to follow the law as it's been explained by the judge. Now, we don't know whether that's the case or not, but I suspect that what the judge was doing by questioning the individual jurors was trying to make that determination, and if the holdout is simply a juror who has a strong conviction and is unwilling to be moved

7:20by the views of the other jurors, that's not something that will result in that juror being removed from the jury. It would have to be a circumstance where a juror was more or less telling the judge that they were refusing to follow the instructions of the court, and in that instance, it's possible the judge would remove them on that basis. Described the competing narratives presented by the prosecution and the defense at trial. The question of who would ever drive someone to harm their own children is something that most people really have never had to grapple with and have a difficult time, I think, assimilating as to exactly what would drive somebody to commit that kind of act. And what we see in this case are two very different narratives, both compelling in their own right where you've got the evidence of a woman according to prosecution committing this premeditated act where she had told her husband to go out to dinner, to go out to the CVS to pick something up, and according to

8:26evidence produced by prosecutors during the trial, she had looked at how long it would take for him to come back. She had been with her children during the day taking them to doctors appointments, and basically the prosecution has said that although she may have a mental illness, she certainly knew what was going on and that this was an act of premeditation, and she knew the wrongfulness of her conduct when she committed this crime. The defense, on the other hand, painting a very different picture, and really, I think, trying to put the medical system on trial in a certain sense by saying that their client visited a psychiatrist 14 times, tried 13 different medications. She called a suicide hotline. She went to the emergency room. She tried to enroll in an inpatient program. She confided in her husband that she had these thoughts of harming their children, and basically they are trying to suggest that she did everything she could to try to prevent this from happening, but ultimately this illness, this rare condition

9:27called postpartum psychosis, caused her to have these hallucinations where she allegedly heard this male voice telling her to kill her children. And jurors faced the very daunting task here. It's very difficult to try to sift through these two competing narratives of what's happened here, to try to listen to the testimony, the medical testimony, the pharmaceutical testimony, and the data, the heartbreaking reality of what actually happened here, a mother killing her own three young children, and figure out whether or not this was a premeditated act, and that justice is served by sending this woman to prison for the rest of her life, or whether she really is suffering from a severe mental illness, and she really committed a crime without knowing right from wrong, and that the right result is to send her to a psychiatric institute rather than a prison. In Massachusetts, things are sort of flipped around in their version of an insanity defense.

10:29Explain how it differs from other states and puts the burden on the prosecution. Massachusetts actually has one of the less restrictive definitions of insanity. The defense here is claiming postpartum psychosis, which in every state is treated like any other insanity defense, and in most cases, defendants must prove that they did not understand what they were doing or they did not know what they were doing was wrong. That's the most stringent standard. Other states have slightly less stringent standards. For example, certain states allow that defendants may have known what they were doing was wrong, but couldn't resist the impulse to do it. Another standard allows juries to consider, but for the defendant's mental defect, the crime would not have occurred. The interesting thing about the one Massachusetts is that it never shifts the burden onto the defense. All the other standards, in most states, shift the burden onto the defense to prove they didn't know what they were doing or that they did not know what they were

11:32doing was wrong, but in Massachusetts, the burden remains with the prosecution at all times, which makes it more difficult for prosecutors to overcome this defense, and in Massachusetts, it requires prosecutors not to defend to prove that a mentally ill defendant retained the substantial capacity to appreciate the wrongfulness or criminality of their conduct and to conform their conduct to the requirements of the law. So in this case, once that defense is raised by the defense, the burden shifts back to the prosecution to overcome that defense, and in this case, the prosecution tried to do it again by proving that the conduct was premeditated and that Miss Clancy knew what she was doing. She may have been mentally ill, that's conceded by prosecutors, but the standard year is whether or not she knew the wrongfulness and the criminality of her conduct and was unable to conform her conduct to the requirements of the law. The prosecution now knows that they only convinced one hold out juror, but this is such a

12:38high profile case. Do you think they'll retry her? Well, it's highly unlikely a prosecution is simply going to drop the case. That is not going to happen. But what they are going to do is go back and scrutinize the trial. Look at the testimony, see how their evidence went in and see how they can improve on that if there is going to be a second trial, and there will no doubt be some conversation with the defense to see if some plea deal can be reached in order to avoid a second trial since both sides have a lot to risk if they go to trial again. We may learn more at the next court hearing, which is schedule four September 29th. Always a pleasure to have you on bot thanks so much. That's Robert Mintz of McCarter in English, coming up next on the Bloomberg Law Show, how the Supreme Court's decision to allow Trump's ballroom to go forward in peril's other cases over his construction projects. I'm June Grasso and you're listening to Bloomberg.

13:38This is the Bloomberg Tech Minute brought to you by Chatchee PT. Now with Chatchee PT work, I'm Carol Masser. Social media posts on sleep outnumber those on exercise by three to one, and those on diet by five to one according to consumer researcher Rila Global Consulting. And so it may come as no surprise that there are seemingly no limits to what we will do to get a good night's sleep. People are spending on everything from pricey sleep trackers, AI-powered scent therapy machines, to $3,000 body temperature regulating manosphere endorsed mattress covers, and couples outfitting totally separate bedrooms. As Bloomberg's Dina Shankar reports, it all adds up to a sleep support industry that's a $300 million business, with growth coming from functional beverages and sleep powders, even as some experts warn that these products may not be effective and can even be harmful. Despite the spend, six out of ten American adults still don't get the seven to nine hours of sleep the credible science says we need. As for experts, they recommend making lifestyle changes,

14:41such as getting sunlight and limiting screen time to improve sleep. That's the Bloomberg Tech Minute brought to you by Chatchee PT. Put Chatchee PT to work on your most ambitious ideas and projects. Get started at chatchee PT.com today by selecting Work Mode, available on plus and pro plans. Let's talk about healthcare for a second. It doesn't always work the way people expect it to. If you've ever waited on a prescription refill or had a hard time getting the care you needed, you know the feeling. The system should just work better for everyone. That's exactly what the people at Optum are trying to do every day. There are healthcare companies linking patient care and pharmacy services and using data and technology to drive the whole system. So, care is connected, not complicated, for patients and providers. Things like making it easier to get care that looks at the whole person from primary care doctors to mental health support and even in-home care. And then using technology to make sure they all work together. Technology designed to help doctors

15:41spend less time on busy work and more time with their patients. And those prescriptions, Optum is working to bring costs down, save patients money and make it easier to get refills. Little by little, Optum is helping make healthcare work as one for everyone. Head to business.optum.com to see how. This message is brought to you by Applecard. Shevice by the beach. A trip to the state fair. And a throwback flick at the local drive-in. There are more than just items to check off the summer bucket list. There are also opportunities to earn 2% daily cash back when you use your Applecard with Apple Pay. Apply for Applecard now and use in minutes with Apple Pay. Subject to credit approval. Applecard is issued by Goldman Sachs Bank USA Salt Lake City Branch, termsinmoreatapplecard.com. One thing I know how to do is build. And so we put a brand new face on the front of the white house, on the ground. The cars will pull up. And this is what you'd have as opposed to the

16:41President Trump has spent much of his second term trying to leave his mark on the white house and throughout DC. And the white house ballroom has been the centerpiece of that campaign. But it's going to be a credit what's going to be aside from being secure. It's going to be the I think it's going to be the most beautiful ballroom ever built. And on Monday, five conservatives on the Supreme Court cleared the way for Trump to continue building the ballroom over the descents of the Chief Justice and the three liberals and brushing aside conclusions by two lower courts that he's probably violating the law. The majority found that the historic preservation nonprofit that sued to stop the ballroom doesn't have legal grounds or standing to contest the project. The decision presents a new high hurdle for those challenging Trump's other construction projects. In fact, on Thursday, the administration filed a motion to have the lawsuit challenging Trump's 250 foot arch

17:45dismissed for standing reasons, citing the Supreme Court's decision on the ballroom. My guest is Tracy Fightlove, founder and executive director of Lawyers for Good Government. Tracy, so the majority on the Supreme Court found that the historic preservation group that sued did not have standing. Tell us more about that. So basically, the court did not rule that President Trump has the authority to build the ballroom. What they did rule is that the particular plaintiffs that initiated this lawsuit are not allowed to challenge it. You say someone doesn't have the standing. It means they don't have the legal right to challenge a particular action. It does not mean the action that they're challenging was legal. Do you think that the Supreme Court often uses standing as sort of an off-ramp that allows it to avoid making a decision on the merits until it's too late? Yes, yes, I do think that. And the reason

18:48I think that is because there have been too many instances over the years when the court seems to find that someone does have standing if it relates to an issue that they want to see decided in a particular way and someone else doesn't have standing because they don't want to get to the merits of a particular issue. That distinction really, really matters. I mean, when you look at the decision, the only four justices who addressed the legality of the actual ballroom project all concluded that it was likely unlawful. That includes Chief Justice Roberts, who emphasized that Congress has not expressly authorized this construction. So it does seem in this instance that possibly standing was an easy out for them. It's not a typical case where someone is injured and obviously has standing. Do you think it's a harder case to make outstanding here than usual? Yeah, this was not clear cut in terms of the standing question. The real issue is when you look at the overarching pattern of decisions about standing. For example, in this case, when they concluded that the National Trust lacked

19:54standing, they said it was because the aesthetic or historical injuries that the plaintiffs were certain were not sufficiently concrete or particularized. But there is other precedent, supreme core precedent that has in some instances recognized aesthetic injuries as being sufficient for standing. For instance, in environmental and conservation cases, when plaintiffs actually use or observe the place or resource that's being affected. So it was a close question. And I think because it could be perceived as close, it gave them the room to maneuver that they wanted in order to not stop the ballroom construction. And we don't often see the Chief Justice in dissent with the three liberals. How surprising is that? Yeah, I mean, it's, I admit, I'm not often surprised any more at all about what these Supreme Court justices do. But I think it does speak to the fact that this is not a partisan question. The issue of standing was not decided along the basis of who appointed

20:59which justice. That means that this issue may have even been closer than the court wants to admit. So I think it's interesting that Justice Roberts actually agreed that the substantive question, the actual question of whether that ballroom was legally being constructed was probably going to be answered in the negative. The Chief Justice did write a strong dissent. He wrote that Congress has explicitly prohibited the construction of any building or structure on grounds of the federal government in DC without congressional authorization. He also said that the majority's order is no victory for the separation of powers. Now the court's conservatives have been consistently expanding presidential power. Do you think the Chief is suddenly coming to the realization that there's a separation of powers problem? I hope he's realizing it. I don't know if it's sudden or

21:59if this is something that he's been willing to accept up until a certain point. But this is fundamentally a story about separation of powers and the rule of law. We can't allow the rule of law to be act first, ask permission later. Standing matters, obviously. But if these procedural barriers are repeatedly preventing anyone from challenging potentially unlawful executive action, then the question is who can actually hold the president accountable? Are the checks and balances that the Constitution meant to set out really in existence now in a meaningful way? The administration has been doing this over and over again in different areas, deporting people before things can get into court, cutting off funding before things can get into court, firing people before things can get into court on and on. And the Supreme Court, except in a couple of instances, tariffs and birthright citizenship, has allowed the president to do this. That's correct. This court has shown a remarkable unwillingness

23:07to hold the executive branch accountable to the constitutional limits that it is meant to operate within. I'm running out of words to describe how dangerous it is to be in a situation where the actions of the executive branch are not being effectively checked or challenged by either of the other two branches. But that is the situation we have found ourselves in. Obviously, the administration is making the argument that the president has the authority to build this ballroom. But is there any convincing legal authority or precedent that contradicts what the lower courts have ruled, which is that a project like this needs congressional approval? In other words, do the plaintiffs have a really strong argument about Congress's role here? Yes. I mean, the circuit court that ruled on this issue expressly said that Congress has constitutional authority over federal property and that it was a problem that Congress had not authorized this project. And the Supreme Court did not find otherwise.

24:12All the Supreme Court really said was that this particular plaintiff couldn't challenge it. What I also find a little puzzling is that usually you have an injunction that will preserve the status quo as a lawsuit goes on. But this is an injunction that is allowing the ballroom to go forward. It's already 65% built. And by the time this gets back if it ever does to the Supreme Court, it'll likely be done so it's not preserving the status quo. No, it is not. And I personally, although I cannot read the justice's minds, I can't obviously speak for them, but it doesn't seem to me that the court as a whole is really trying to manage or maintain the status quo here. It's pretty clear to me that they're very willing to allow the construction to proceed understanding that that means it will be nearly impossible to undo. And that effectively, the president has just been granted the authority to do what he should not have the authority to do.

25:16This administration mentions national security. It seems to me in almost every argument there's a national security reason for what they're doing. I mean, did the majority here actually buy that there's a national security reason for this ballroom? That was something that wasn't mentioned until well after the construction started. In fact, President Trump wanted to build a ballroom at the White House during Barack Obama's administration. So building the ballroom came first and then claims of national security reasons. National security is one of those phrases that the administration likes to throw out there because they believe that it grants them almost unlimited powers. It's an easy way for them to make the argument that they should be allowed to do whatever they want to do and because they're unilaterally making these declarations of when there is or is international emergency, it's very hard to put any checks on that. And that's exactly why they use that phrase so often. There is nothing inherently national security related to a ballroom.

26:21I understand that there is meant to be something constructed underneath the new ballroom that may be relevant to national security, but that's a separate question. Trump is trying to remake DC in different ways. He keeps trying to put his name up on the Kennedy Center. I mean, we have the reflecting pool. He wants to build this arch. Will this decision by the Supreme Court lead him to start building the arch? Is the arch next? It could be. Like I said, about the justices, I can't understand or predict what happens inside the mind of this president or his colleagues, but it does seem that the president here has been set in a way that establishes for practical purposes. If the president is willing to move quickly enough, he will be allowed to get away with it. And that means we need Congress to step up and be willing to do its job. If the Supreme Court is unwilling to put any meaningful checks on the authority of this president, the only branch of government left that is capable of doing that is Congress. Do you think that

27:26other groups can try to sue over the ballroom or it's too late for that? I mean, it's theoretically possible that another group could try. My hunch is that the litigators, the lawyers who brought this suit did their best to find the plaintiff that they thought would be most likely to have standing, but is it possible that there's another group out there that might be deemed to have standing? It's possible. I think it's unlikely that that will happen. It seems like this decision will open up challenges from the administration to a lot of these lawsuits to try to stop Trump's construction projects. For example, it's two preservationist organizations that have challenged plans to paint the granite exterior of the 19th century Eisenhower Executive Office Building and the National Trust and other preservationist and heritage organizations have also challenged the plan renovations to the Kennedy Center. So this Supreme Court

28:30decision on the ballroom may have wide ranging implications. Thanks so much for joining me Tracy. That's Tracy Fight Love, founder and executive director of Lawyers for Good Government. Coming up next on the Bloomberg Law Show. The second circuit rules that high school teachers in a Long Island New York public school don't have free speech rights to hang pride flags in their classrooms. I'm June Grasso and you're listening to Bloomberg. Should high school teachers be able to hang pride flags on the walls of their classrooms or put up pride stickers? That question became a federal case when three teachers took a Long Island New York public high school to court for ordering the removal of those pride flags and stickers. These teachers had flags and stickers as pride. They weren't using the classroom as a pulpit lecture. They weren't even incorporating it into their classroom curriculum. It's very clear

29:32that the plaintiffs don't have a First Amendment right to decorate their classroom walls with personal political symbols. Their case ended up at the second circuit Court of Appeals where the attorney for the teachers Cheryl Berger argued that the pride flags and stickers constituted the teacher's speech protected by the First Amendment. While the attorney for the school district, Brian Sokoloff argued that the classroom decorations constituted speech of the teachers in their official duties as government employees. When the teachers had their flags and and stickers displayed here, it was just a demonstration of pride. They're not displaying it towards imparting or voicing any messaging upon the students. Her speech, the flag, uttered as part of her job is not protected by the First Amendment. The second circuit unanimously

30:34sided with the school district and upheld the lower court's dismissal of the lawsuit. Joining me as First Amendment expert Timothy Zick, a professor at William & Mary Law School. Tim is there a general rule for what can be put up in public school classrooms? I mean, there are lots of cases about student speech, right? So I'm thinking of the Supreme Court just decided a number of cases about the sort of scope of student speech rights. So this involves faculty or teachers and their rights free speech rights as they pertain to in this case the classroom but not the curriculum. But instead the sort of blackboards or bulletin boards and walls and doors and those sorts of things and what they put on them, there is no hard and fast rule for that. Right? And certainly there's no Supreme Court case that's about these specific facts. So what the second circuit is doing is it's applying a sort of doctrine that applies to the free speech rights of public employees generally. And these

31:37are high school teachers, math teachers and others and it's their speech that's an issue. So that's what the court is doing. So in some sense it's addressing a novel issue. The teachers here made several arguments. First they argued that ordering the removal of the flags and stickers violated their free speech rights. Yeah, so they argued that the pride flags were a form of what's called symbolic conduct or expressive conduct that conveyed their political speech. These are people who are out as gay individuals. So their argument was by forcing us to take these things down. That violates our free speech rights and they added there's a sort of discriminatory element to this because you're not making people take down other things from the walls. So you're singling us based on the alleged and their complaint viewpoint. And the court rejected that argument entirely,

32:38rejected all their arguments. But that one in particular implicates this idea of the speech rights of public employees. And there's a case called Garcetti and that's the Supreme Court case. The courts were lying on the most. And in Garcetti there is an assistant district attorney who was writing memos for search warrants and he came across a warrant that was problematic and he brought that to his boss's attention in a sort of whistleblower way. And he was sanctioned or disciplined for that. He said, well, it violates my free speech rights to discipline me for that speech. And the court's answer was when the public employee creates speech as part of their so-called professional duties. When the speech owes its existence to the job itself. When they go to work, these are different ways the court phrase it. When they go to work and they create speech that they're being paid to create like the memo in Garcetti, then the first amendment just flies out the window. It just doesn't apply to that speech at all. So whether you're arguing it's just a straight up, you know,

33:40you're taking down my protected speech or you're discriminating based on viewpoint, none of those arguments go anywhere if the speech essentially belongs to the employer. And that's where the court lands. It says, you know, that speech on the walls and on the doors is in essence part of curricular speech. And the first amendment doesn't restrict the public employer, a school administrator, as the principals, when they deal with and restrict that kind of speech. So that's what happened to their free speech plans and everything else just sort of flows from that. The Supreme Court has ruled that students have free speech rights at school. Oh, yes. So the court and a case called back in the 1960s said that students do not shed their free speech rights at the schoolhouse gates. And in that case, the students were wearing black armbands to protest the Vietnam war and they were disciplined, punished for wearing them in violation of school policy. And the court said, you can't discipline these students. So the first member protects their political dissent,

34:45unless what they're doing creates a material and substantial disruption in the classroom or with respect to the school's functions. So it's clear that students don't shed their first minute rights. And this court, the second circuit says, neither do teachers. We're just saying this speech in particular is not protected speech. And they drew a distinction between the things that teachers are putting on the walls and the doors and say a pride flag lap help in or a photograph of their same sex spouse. Those the courts that are likely protected speech, that's not something the employer owns or has plenary control over. But when it comes to creating a classroom environment, which is how the court characterized this speech, the employer controls. The teachers also claim that they were denied equal protection. Yeah. So part of that is being singled out based on the sort of viewpoint of the speech, but they also alleged they were singled out because they're gay. And the court said there's nothing in the complaint that sort of sheds any

35:53light on a claim of so-called animus. In other words, you haven't alleged any facts that would support to claim that this policy was the result of or was purposefully discriminatory against the class of individuals based on that characteristic sexual orientation. So the legal protection claim, they said, is also dismissed as the district court dismissed. They're just upholding the district court. Then they made some sort of human rights claims, sort of discriminatory claims under federal law and state law. And those went the way of the discrimination claim that I just discussed. I mean, do you think this is a solid opinion? I mean, it applies faithfully, I think, what the court said in Vartesetti. With regard to public employees, I mean, some might think it's a bit of a stretch to say what goes on the walls is part of the curriculum. So it's pretty clear there that district officials and others would have control at the high school level at least or elementary school level over what's taught. But extending that to what goes on the walls, some might think

36:57stretches things a bit or is the court character as a creating a classroom environment? I suppose it in a math classroom one might expect to see equations or great figures in math from history or something like that. That seems to be the sense in which the court saying, no, no, this speech is all about a classroom environment. When teachers put things up in the classroom, that's being done pursuant to their job responsibilities. And that is something that the employer can control. And I guess, you know, if you think about it, that would make sense. You know, if that weren't a case, then all kinds of political speech could go up on the walls where you could have magus speech or anti-magus speech. And teachers could claim, well, that's all, you know, part of my political expression. And so I think pragmatically, it's persuasive, right? And probably with respect to Vartesetti too. The one thing that concerns, you know, academics like myself is Vartesetti's application to instructor speech in the classroom because if Vartesetti is taken

38:03literally, it would mean that my teaching and my scholarship are also controlled by my employer, because that's what I get paid to go to work and do. And so in Vartesetti, the court sort of punts that issue, it says, we're not addressing in this case what happens with respect to university professors or presumably graduate professors who have academic freedom and tenure and those sorts of things. So they kind of put that aside. This is not that case either. These are high school teachers and they don't have the same protections as university professors. But, you know, it's just another place where this Vartesetti case is sort of shown up or popped up and it extinguishes free speech claims. And to some people, that's disturbing enough. Is this a unique case? A novel case, have you heard of anything similar to this across the country? I haven't heard anything about walls and doors, but there's certainly been questions about, you know, assignments that teachers might give to students or how they grade them. You know, the contours of this kind of doctrine in the high school and

39:09elementary context is just not clear. You know, I think I've come across some cases about clothing or jewelry or lapel pins or religious symbols of those sorts of things, but this is just a sort of unique factual context, I think. Tim, before I let you go, I wanted to ask you about the first amendment issues being raised in a lawsuit by two media organizations against President Trump over this subscription service that's charging up to $100,000 a month for priority access to Trump's true social posts. You know, putting aside securities laws and other laws that this may violate, the news organizations, the nonprofits are alleging in their complaint that when you offer this kind of early access or exclusionary access to some but not others, you violated their right to receive an information, in this case governmental information. So there isn't the first amendment

40:09right to receive, not just a right to speak, and they're invoking that right as news organizations that follow his posts, some even analyze his posts, right? And so they're making that argument. They're also arguing that the posts that the president puts up on true social are what are called public for a, and that argument is, you know, you can limit speech in a public forum, this kind of resource, but you have to meet sort of requirements, right? There has to be some kind of important governmental interest, and you have to endarily tailor whatever restriction you have, and leave open ample alternative channels for receiving this speech, and they say it fails that test, it's sort of time, place, and manner test. And then they make a final argument that says, this is an unconstitutional condition, it's essentially extortion it. You're making a benefit available, but on an unconstitutional grounds, because the news organizations say we can't afford it, and even if we could, we wouldn't compromise our objectivity and our professionalism

41:09by signing on as subscribers. Trump media defended the service, saying the information is technically public, and no different from subscription, APIs offered by other major media platforms. Well, they keep ignoring that the president is different, and that his official participation in this scheme, I'll call it, makes this a constitutional issue. We'll wait to see how they answer the complaint. Thanks so much, Tim. That's Professor Timothy Zick of William & Mary Law School. And that's it for this edition of the Bloomberg Law Show. Remember you can always get the latest legal news on our Bloomberg Law podcast. You can find them on Apple podcasts, Spotify, and at www.bloomberg.com slash podcast slash law. And remember to tune into the Bloomberg Law Show every weeknight at 10 p.m. Wall Street Time. I'm June Grasau, and you're listening to Bloomberg.

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