# Proposals to Ban Naturalized Judges & NFL's Hail Mary Pass

An episode of [Bloomberg Law](https://invisiblenetwork.ai/podcast/277975394), 24 Jul 2026, 27 min.

Audio: https://podtrac.com/pts/redirect.mp3/traffic.omny.fm/d/clips/e73c998e-6e60-432f-8610-ae210140c5b1/7c892d84-801f-4c0b-b0e9-ae2b0012ff5f/5a3f9bcb-6a9a-4965-9392-b491003c8c09/audio.mp3?utm_source=Podcast&in_playlist=91224201-26a6-429d-ac3c-ae2b0012ff6d

Judge Jeremy Fogel, formerly of the US District Court for the Northern District of California, discusses the objections to proposals to ban judges who were not born in the US from serving on the bench. First amendment expert Jeff Lewis discusses the NFL’s latest attempt to get the suit against it by former coach Jon Gruden dismissed. June Grasso hosts. See omnystudio.com/listener for privacy information.

## Transcript

[0:02] Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
[0:08] Speaker 2: A group of retired federal judges is speaking out against
[0:12] Speaker 2: the latest attack on US citizens who weren't born in
[0:16] Speaker 2: this country. Republican Representative Pete stauborough Minnesota has introduced legislation
[0:23] Speaker 2: that requires all federal judges to be born in this country,
[0:27] Speaker 2: and Representative Nancy Mace of South Carolina has introduced joint
[0:32] Speaker 2: resolutions proposing a constitutional amendment to require not only judges,
[0:38] Speaker 2: but also senators, representatives, and other federal officers to be
[0:43] Speaker 2: natural born US citizens. Keep our Republic's Article three Coalition,
[0:49] Speaker 2: a group of retired federal judges appointed by presidents from
[0:53] Speaker 2: both parties, says the proposals are contrary to the nation's
[0:58] Speaker 2: constitutional tradition and that judges should be evaluated by their integrity, judgment,
[1:04] Speaker 2: and fidelity to the law, not by their place of birth.
[1:08] Speaker 2: Joining me as a member of the Article three Coalition,
[1:11] Speaker 2: Judge Jeremy Foegel, formerly of the District Court for the
[1:14] Speaker 2: Northern District of California. Judge Fogel, what do you think
[1:18] Speaker 2: is the genesis of these proposals, especially the proposal for
[1:22] Speaker 2: a constitutional amendment by Representative Mace.
[1:25] Speaker 3: There were two decisions in cases having to do with
[1:29] Speaker 3: immigration that were made by judges who were naturalized citizens,
[1:33] Speaker 3: and she and various other people criticized those decisions because
[1:38] Speaker 3: they were adverse to immigration policies they supported. And in
[1:43] Speaker 3: the course of criticizing the decisions, they pointed out that
[1:46] Speaker 3: the judges were not native born citizens. One is Judge
[1:51] Speaker 3: Supman in Illinois and then Judge Tahwany in Massachusetts. And
[1:57] Speaker 3: the statement was, well, what do you expect is they
[2:01] Speaker 3: weren't born here. They don't understand. I mean, that's why
[2:03] Speaker 3: they're ruling against these immigration policies that we support. So
[2:08] Speaker 3: that was what happened, and I think the reaction on
[2:12] Speaker 3: the part of our group was, you know, you can
[2:15] Speaker 3: criticize decisions all you want. That's people's constitutional right. It's
[2:19] Speaker 3: free speech, and it's entirely appropriate. But to attack individual
[2:23] Speaker 3: judges because of where they were born and what their
[2:26] Speaker 3: heritage is is really pretty it's really out of bound.
[2:30] Speaker 3: And it happened right around the fourth of July. You know.
[2:33] Speaker 3: So we have the celebration of our independence in two
[2:38] Speaker 3: hundred and fifty years of independence and the Constitution which
[2:41] Speaker 3: we're going to be celebrating in September, and I think
[2:43] Speaker 3: it just kind of provoked a real strong reaction among
[2:46] Speaker 3: our retired judges groups. We just wanted to say something.
[2:49] Speaker 3: You know, it's not that we have any fear that
[2:52] Speaker 3: this resolution or the other one are actually going to
[2:54] Speaker 3: get passed by Congress, but there was just something that
[2:57] Speaker 3: was so fundamentally offensive about statements, and so that was
[3:02] Speaker 3: what prompted. And you know, the way our coalition works,
[3:06] Speaker 3: we sometimes will just circulate statements to judges and they
[3:10] Speaker 3: can join or not. This was one where we said,
[3:13] Speaker 3: we want to speak on behalf of the entire coalition,
[3:15] Speaker 3: all fifty eight judges, and we just want to give
[3:19] Speaker 3: everyone an opportunity to weigh in and suggest that that's
[3:22] Speaker 3: are too object or whatever the case may be. And
[3:25] Speaker 3: I think since we've been organized and working together, which
[3:28] Speaker 3: has been about a year and a half, that this
[3:31] Speaker 3: may have been the easiest group statement to get signatures
[3:34] Speaker 3: for it. There was a real sense that this was
[3:36] Speaker 3: just not okay, and you know, it's important that we
[3:39] Speaker 3: speak up as retired judges about it. And I think
[3:42] Speaker 3: it's also a way of supporting the judges involved. It's
[3:45] Speaker 3: not expressing agreement or disagreement with their decisions, but just
[3:48] Speaker 3: they don't deserve to be attacked on that basis. And
[3:51] Speaker 3: you know, when we did a little research, it's interesting
[3:53] Speaker 3: that we look at the judges the article three judges
[3:57] Speaker 3: who have served since the founding of the public and
[4:01] Speaker 3: were naturalized citizens. It's a pretty impressive list, and it
[4:05] Speaker 3: has no relationship to political gideology. Some of the most
[4:09] Speaker 3: prominent ones have been notably conservative, some of the other
[4:13] Speaker 3: ones who's been prominent liberal, and so there's no orientation
[4:17] Speaker 3: that attaches to being a naturalized citizen. It's just just
[4:20] Speaker 3: so we've had a lot of very distinguishers that have
[4:23] Speaker 3: been Do you.
[4:23] Speaker 2: Think they're looking at the fact that, you know, the
[4:26] Speaker 2: Constitution says the president has to be born here and
[4:29] Speaker 2: they're saying, well, let's make that judges and every member
[4:33] Speaker 2: of Congress too.
[4:34] Speaker 3: That actually cuts both ways, because when the founders wrote
[4:38] Speaker 3: the Constitution, they certainly were thinking about that, and in
[4:41] Speaker 3: seventeen eighty seven they could have very easily said, well,
[4:44] Speaker 3: you know, we want all of our elected and prominent
[4:46] Speaker 3: officials to be native born, and they didn't. They just
[4:49] Speaker 3: they just said that they wanted the president to be
[4:52] Speaker 3: and we did not include judges, they did not include
[4:54] Speaker 3: members of Congress, and you know, it's not like it
[4:57] Speaker 3: wasn't on their minds and they made a decision. So
[5:00] Speaker 3: I think we've lived with it for two hundred and
[5:02] Speaker 3: fifty years, and you know, it's it's almost a cliche
[5:05] Speaker 3: to say this is you know, this is a nation
[5:07] Speaker 3: of immigrants that's been built by immigrants, and naturalized citizens
[5:10] Speaker 3: have contributed immensely to the country in just a multitude
[5:14] Speaker 3: of ways, and so I think seizing on that is
[5:18] Speaker 3: probably not a good idea because the history is that
[5:20] Speaker 3: the founders had that qualification in mind and chose not
[5:23] Speaker 3: to include the judiciary and members of concresce. So, you know,
[5:26] Speaker 3: I don't think that these proposals are going anywhere. I
[5:28] Speaker 3: just think the fact that they were even floated was
[5:32] Speaker 3: something that especially given that we're celebrating the two and
[5:34] Speaker 3: fiftieth anniversary of the Declaration, you know, it's good to
[5:38] Speaker 3: remember what our principles are in the country, and this
[5:41] Speaker 3: one the idea that this is a country which welcomes
[5:45] Speaker 3: and this has nothing to do with controversies about legal
[5:47] Speaker 3: immigration or illegal immigration, or with immigration policy ought to be.
[5:52] Speaker 3: We've always had people coming to our country and looking
[5:55] Speaker 3: for ways to make lives here. And you know, we
[5:58] Speaker 3: have robust debates about what our laws ought to be
[6:00] Speaker 3: and how easy or how hard that ought to be.
[6:03] Speaker 3: But I don't think anybody can really argue that immigrants
[6:06] Speaker 3: have really helped to build our country and still do.
[6:10] Speaker 3: And every judge, every Article three judge, has to be
[6:13] Speaker 3: a citizen of the United States. That's a requirement, and
[6:16] Speaker 3: nobody's questioning that. But if people go through the process
[6:20] Speaker 3: to become citizens, and anybody who's been through the naturalization
[6:23] Speaker 3: process knows that it's it's actually pretty pretty rigorous, and
[6:27] Speaker 3: you have to know more about the Constitution than people
[6:30] Speaker 3: who are born here. Otherwise you don't get naturalized as
[6:33] Speaker 3: a citizen. And so just to say that people with
[6:36] Speaker 3: that background should not be judged, it's just something that
[6:39] Speaker 3: needed to be called out. I think that was the
[6:41] Speaker 3: sense of our of our group.
[6:42] Speaker 2: So I'm wondering if it's part and parcel of what
[6:46] Speaker 2: we've seen from the Trump administration, you know, with the
[6:50] Speaker 2: attack on birthright citizenship and also the instruction to Justice
[6:55] Speaker 2: Department lawyers to maximally pursue the naturalization proceedings. I mean,
[7:02] Speaker 2: before this administration, stripping citizenship has been rare. On average,
[7:08] Speaker 2: there were only eleven d naturalization cases each year from
[7:13] Speaker 2: nineteen ninety to twenty seventeen.
[7:17] Speaker 3: I think you could certainly say, you know, I'm not
[7:20] Speaker 3: in a position to speculate what they're thinking, but it's
[7:23] Speaker 3: in line with that in the sense that, you know,
[7:26] Speaker 3: I think for a long time, being a naturalized citizen
[7:29] Speaker 3: was a pretty respected status, and I mean I think
[7:32] Speaker 3: it still is among most people. And so the idea
[7:35] Speaker 3: that you would in any way kind of try to
[7:37] Speaker 3: diminish that is something new and different. And I think
[7:41] Speaker 3: including judges in that is definitely new and different. I mean,
[7:45] Speaker 3: I've never seen that. And as I said, I mean
[7:48] Speaker 3: there are judges on when you go back and actually
[7:51] Speaker 3: do the research as to who's in that group. I mean,
[7:54] Speaker 3: there are people who are really quite supportive of the
[7:56] Speaker 3: president in his policies and the administration. I mean, they
[7:59] Speaker 3: have been pretty vocal in that respect. But you know,
[8:01] Speaker 3: that group includes naturalized it. So I think the idea
[8:05] Speaker 3: that you're going to weaken that status or make it
[8:07] Speaker 3: more intingent, that is certainly something that some people in
[8:10] Speaker 3: administration have been talking about and you know, I think
[8:13] Speaker 3: you could certainly say that this is part and parcel
[8:16] Speaker 3: with that.
[8:16] Speaker 2: Please stay with me, Judge Fogel coming up next. The
[8:20] Speaker 2: top lawyer at the Department of Homeland Security is publicly
[8:24] Speaker 2: calling out for federal judges in a list This is Bloomberg.
[8:31] Speaker 2: Last week, Justice is Elena Kaigan and Amy Cony Barrett
[8:35] Speaker 2: testified before Congress about the increasing threats to the judiciary.
[8:40] Speaker 2: Justice Kagan explained how politicians calling out judges by name
[8:45] Speaker 2: and trying to intimidate them crosses a line and it's dangerous.
[8:50] Speaker 4: These statements are really unhelpful. They're dangerous in terms of
[8:56] Speaker 4: individual justices security, and they're not appropriate the way to
[9:01] Speaker 4: treat a coordinate branch of government. I think the Chief
[9:04] Speaker 4: Justice had a year end statement last year where he
[9:08] Speaker 4: talked about this issue, and he talked about a criticism
[9:12] Speaker 4: is fair game. I mean, go for it. You know,
[9:15] Speaker 4: life in the big city is that you're subject to
[9:18] Speaker 4: all kinds of criticism, But intimidation is a different thing entirely.
[9:24] Speaker 4: And when political figures of any stripe are trying to
[9:27] Speaker 4: intimidate judges and justices to do things that they like
[9:33] Speaker 4: rather than the things that they don't. That's where we
[9:37] Speaker 4: really have crossed the line.
[9:39] Speaker 2: Judges are facing increasing threats, with the US Marshals Service
[9:44] Speaker 2: tracking five hundred and sixty four threats against federal judges
[9:49] Speaker 2: last year. But instead of toning down the rhetoric against judges, today,
[9:54] Speaker 2: the top lawyer in the Department of Homeland Security, James Percival,
[9:59] Speaker 2: called out four federal judges by name in posts on
[10:03] Speaker 2: social media, which he described as a new series entitled
[10:08] Speaker 2: quote Worst of the Worst District Judge. Addition, apparently the
[10:13] Speaker 2: judges made the list because they ruled against the Trump
[10:16] Speaker 2: administrations immigration agenda. For example, two of the judges ruled
[10:21] Speaker 2: to temporarily preserve deportation protections for certain immigrants from Burma
[10:27] Speaker 2: and Somalia while litigation continued. Another judge was in charge
[10:32] Speaker 2: of the Justice departments bungled deportation proceedings for Kilmar Orbrego Garcia.
[10:38] Speaker 2: I've been talking to retired federal judge Jeremy Fogel. Judge
[10:42] Speaker 2: Fogal your article three coalition has spoken out about the
[10:47] Speaker 2: increasing threats to federal judges safety and last week, Justices
[10:53] Speaker 2: Amy Cony Barrett and Elena Kagan were testifying before Congress
[10:58] Speaker 2: about the increasing threats to justices and judges as well.
[11:03] Speaker 2: Yet today we have the General Counsel of the Department
[11:07] Speaker 2: of Homeland Security putting out a list of four judges
[11:11] Speaker 2: he calls the worst of the worst. So doing exactly
[11:15] Speaker 2: what the justices said was dangerous.
[11:19] Speaker 3: That's exactly the kind of thing that we're trying to
[11:22] Speaker 3: be vigilant about. I don't think anybody's really said it
[11:26] Speaker 3: better than the Chief Justice. I mean, he's now spoken
[11:29] Speaker 3: about it three or four times, and it's very unusual
[11:31] Speaker 3: for him to make public statements like that. He's felt
[11:34] Speaker 3: it necessary to speak out about threat and among the
[11:37] Speaker 3: statements that he's made, he's talked about it's inappropriate to
[11:41] Speaker 3: engage in these kinds of attacks, to call like that,
[11:44] Speaker 3: to threaten judges with impeachment or removal, that it's somehow
[11:47] Speaker 3: appropriate to go after them because they've ruled against the
[11:51] Speaker 3: administration in the ways that they have. The sitting judges
[11:54] Speaker 3: are very limited in what they could say because of
[11:56] Speaker 3: ethical and I think retired judges are in a unique
[11:59] Speaker 3: position say, look, we have sat in that chair. We
[12:02] Speaker 3: understand what the job is, we understand what our responsibilities
[12:05] Speaker 3: are in terms of following the law and doing the
[12:08] Speaker 3: right thing is the best of our ability, and we
[12:12] Speaker 3: have a system which allows for thorough review. People make
[12:16] Speaker 3: decisions that you don't like. I mean, that's why we
[12:18] Speaker 3: have appellate courts, that's why we have very robust a
[12:22] Speaker 3: pellet review. And to make these kinds of personal characterizations
[12:28] Speaker 3: and putting people on hit lists or enemies lists or
[12:31] Speaker 3: impeachment lists, again, that's just not the way our system
[12:34] Speaker 3: ever has been intended to work. So I don't think
[12:37] Speaker 3: that's constructive. And I think that's really been one of
[12:39] Speaker 3: our goals try to educate the public to the extent
[12:42] Speaker 3: that we can that you know you don't like a
[12:44] Speaker 3: judge's rulings, you can speak out about that, you can
[12:48] Speaker 3: write op eds, you can make public speeches, you can
[12:50] Speaker 3: talk to your neighbors, you can do all the things
[12:52] Speaker 3: that the First Amendment entitles you to do. But you
[12:54] Speaker 3: can't threaten people. And I think Justice Barrett and Justice
[12:58] Speaker 3: Kegan we're very eloquent about that, and they both faced this.
[13:03] Speaker 3: Sispic's family has been threatened and Justice Kagan has they's threats,
[13:06] Speaker 3: and I think the fact of that on the morale
[13:10] Speaker 3: of judges, the ability of judges to do their jobs
[13:13] Speaker 3: without undue pressure under stress. And it's a hard enough
[13:17] Speaker 3: job as it is, you know, just trying to get
[13:19] Speaker 3: the law right and trying to get the cases right
[13:21] Speaker 3: and manage the workload that you have. And then when
[13:24] Speaker 3: you when you get you know, people coming after you
[13:26] Speaker 3: or coming after your family, that really really ratcheted up.
[13:30] Speaker 3: And this is an area I do a lot of
[13:32] Speaker 3: work in and helping judges deal with stress and be resilient.
[13:35] Speaker 3: And it's just graduated up so much in the last
[13:38] Speaker 3: few years. You know that a job that was already
[13:40] Speaker 3: difficult has become much more difficult because of security issues
[13:44] Speaker 3: and personal threats. And I think that's why the chief
[13:47] Speaker 3: is spoken out, and I give them full credit for that.
[13:50] Speaker 3: He hasn't been quiet about it, and I think that's
[13:53] Speaker 3: very important.
[13:54] Speaker 2: Well, thanks so much for joining me today. I appreciate
[13:57] Speaker 2: your time. That's Judge Jeremy Fogel, formerly of the Northern
[14:01] Speaker 2: District of California. Back in October of twenty twenty one,
[14:07] Speaker 2: John Gruden resigned in the middle of a four hundred
[14:10] Speaker 2: million dollar ten year contract as coach of the Las
[14:13] Speaker 2: Vegas Raiders after the leak of emails where Gruden used
[14:18] Speaker 2: racist and homophobic language. He apologized, in particular for the
[14:23] Speaker 2: racist term he used to describe NFL Union chief D
[14:27] Speaker 2: Maurice Smith.
[14:29] Speaker 5: I can say as I'm not a racist, I don't.
[14:31] Speaker 5: I can't tell you how sick I am. I apologize
[14:34] Speaker 5: again to D. Smith, but I feel good about who
[14:39] Speaker 5: I am and what I've done my entire life, and
[14:42] Speaker 5: I apologize for the insensitive remarks. I had no you know,
[14:48] Speaker 5: I had no racial intentions with those remarks at all.
[14:53] Speaker 2: The next month, Gruden filed a one hundred and fifty
[14:56] Speaker 2: million dollar lawsuit against the NFL and Commissioner Roger Goodell,
[15:01] Speaker 2: claiming that in a malicious and orchestrated campaign, the league
[15:05] Speaker 2: leaked the damaging emails to ruin his reputation and force
[15:09] Speaker 2: his resignation. Goodell and the League denied the allegations and
[15:13] Speaker 2: have been vigorously fighting the case since, including failed efforts
[15:18] Speaker 2: to force this suit into private arbitration and to stall discovery,
[15:23] Speaker 2: both of which went all the way up to the
[15:25] Speaker 2: Nevada Supreme Court before they were denied. Now the NFL
[15:29] Speaker 2: is trying to get the lawsuit dismissed under Nevada's anti
[15:33] Speaker 2: slap statute joining me his first Amendment expert Jeff Lewis.
[15:37] Speaker 2: Jeff start by telling us a little about Gruden's lawsuit.
[15:41] Speaker 1: Well, coach Cruden used to be the coach of the
[15:43] Speaker 1: Las Vegas Raiders, and he was forced to resign after
[15:46] Speaker 1: some unflattering emails were released that he had sent when
[15:50] Speaker 1: he was actually a broadcaster for ESPN. And the gist
[15:54] Speaker 1: of his lawsuit is that he says these emails were
[15:57] Speaker 1: obtained by the NFL, released for the purpose of torpedoing
[16:02] Speaker 1: John Gruden's career, and so he sued the NFL for
[16:06] Speaker 1: lost income and lost opportunities.
[16:08] Speaker 2: So the NFL has spent years trying to have this
[16:12] Speaker 2: lawsuit dismissed or forced into private arbitration. Last summer, the
[16:17] Speaker 2: Nevada Supreme Court upheld a lower court ruling that allowed
[16:20] Speaker 2: the case to move forward in court rather than being
[16:23] Speaker 2: handled through private arbitration. How important is that that it's
[16:28] Speaker 2: not going to be an arbitration, You.
[16:30] Speaker 1: Know, that's a great point. You know, in football, when
[16:32] Speaker 1: you want to keep offense off the field, you run
[16:34] Speaker 1: out the clock. And that's what the NFL has been
[16:36] Speaker 1: doing in terms of trying to force this case into
[16:38] Speaker 1: an arbitration where the commissioner of the NFL runs the arbitration.
[16:43] Speaker 1: So the Nevada Supreme Court said, no, that's not going
[16:45] Speaker 1: to happen. So now this case is going to be
[16:48] Speaker 1: heard in a court with discovery open to the public,
[16:51] Speaker 1: not confidential. Trial set for early twenty twenty seven. And
[16:55] Speaker 1: the fact that discovery can be conducted and that this
[16:58] Speaker 1: trial is going to be in open and not any
[17:00] Speaker 1: secret arbitration suggests to me that maybe this case, when
[17:04] Speaker 1: it gets close to trial, will settle because both of
[17:07] Speaker 1: these parties have big incentives not to have this aired
[17:10] Speaker 1: out in public.
[17:11] Speaker 2: So the NFL is trying to get the lawsuit dismissed
[17:17] Speaker 2: under Nevada's anti slap statute. Tell us about the anti
[17:21] Speaker 2: slap statutes.
[17:22] Speaker 1: Sure, before I talk to you about antislap, let me
[17:24] Speaker 1: tell you what a slap is. A slap is a
[17:26] Speaker 1: strategic lawsuit against public participation where a big company or
[17:31] Speaker 1: large corporation is trying to stifle the First Amendment rights
[17:35] Speaker 1: of a little guy that David versus Goliath battle. And
[17:38] Speaker 1: what an antislap law says is rather than waiting five
[17:41] Speaker 1: years and spending half a million dollars on attorney's fees.
[17:44] Speaker 1: A defendant in a slapsuit, a case involving First Amendment
[17:48] Speaker 1: rights can very quickly cut the line, have their case
[17:51] Speaker 1: looked at in the first six months, and if it's
[17:53] Speaker 1: a frivolous case, have it thrown out, and have all
[17:55] Speaker 1: their attorney's fees paid for. That's what an anti slap
[17:59] Speaker 1: usually does. What makes this case super unusual is the NFL,
[18:03] Speaker 1: first of all, is not the David in the David
[18:05] Speaker 1: and Goliath scenario. The NFL is using the antislap law
[18:09] Speaker 1: halfway through the case, years after it was filed, to
[18:11] Speaker 1: try to get the case kicked out, and preliminarily, the
[18:15] Speaker 1: trial court has said, no, this is not a good
[18:17] Speaker 1: use of the antislap law. It's too late and your
[18:20] Speaker 1: arguments aren't good, and so we're going to let discovery
[18:23] Speaker 1: and the trial date continue. And the NFL's signaled that's
[18:26] Speaker 1: going to appeal that ruling and wants to stay all
[18:29] Speaker 1: discovery pending that appeal, and so far the trial court
[18:32] Speaker 1: has said no, we're going to continue with discovery.
[18:34] Speaker 2: So Nevada's antislap law protects quote, a person who engages
[18:39] Speaker 2: in a good faith communication in furtherance of the right
[18:43] Speaker 2: to petition or the right to free speech in direct
[18:46] Speaker 2: connection with an issue of public concern. How is the
[18:50] Speaker 2: NFL arguing that this case fits within that definition.
[18:56] Speaker 1: Through some creative lawyering. Look, the First Amendment does protect
[18:59] Speaker 1: the right folks to communicate with the press about issues
[19:02] Speaker 1: of public importance. You and I are talking about an
[19:04] Speaker 1: issue of public importance right now, and so the NFL's
[19:07] Speaker 1: creative lawyering is, Look, when they supplied emails to a
[19:12] Speaker 1: reporter or to a newspaper or the Wall Street Journal,
[19:15] Speaker 1: they were communicating with the press and exercising First Amendment
[19:19] Speaker 1: rights for an important news story. The contrary argument that
[19:23] Speaker 1: Gruden has advocated is, Look, this wasn't First Amendment activity.
[19:27] Speaker 1: You leaked it. It was quiet, wasn't in furtherance of
[19:30] Speaker 1: some First Amendment right. You were just trying to do
[19:32] Speaker 1: a hit piece on John Gordon.
[19:34] Speaker 2: Do they know who leaked the emails?
[19:37] Speaker 1: No. That's why discovery so important this case, and that's
[19:40] Speaker 1: why NFL is trying to fight discovery and use appeals
[19:44] Speaker 1: and delay tactics. And that's why John Gruden is pushing
[19:47] Speaker 1: for discovery. It's the pressure point by which this case
[19:50] Speaker 1: will eventually settle.
[19:52] Speaker 2: Because if they don't know who leaked it, how can
[19:54] Speaker 2: they claim that the person engaged in good faith communication.
[20:00] Speaker 1: That's exactly right, and the good faith here, it's the
[20:02] Speaker 1: NFL's burden to show their good faith, and they can't
[20:05] Speaker 1: just generically say, well, someone leaked it and they must
[20:08] Speaker 1: have had good faith. They have to have an actual, living,
[20:10] Speaker 1: breathing person to sign a declaration or testify in court
[20:13] Speaker 1: saying here's why I leaked it, and I don't know June,
[20:16] Speaker 1: but I'm going to guess that the person who leaked
[20:19] Speaker 1: this from the NFL either didn't say anything to the
[20:23] Speaker 1: press when they were leaking it, or didn't say anything
[20:26] Speaker 1: flattering to John Gruden when they were leaking it to
[20:29] Speaker 1: the press. Either scenario, it's going to be a hard,
[20:32] Speaker 1: hard burden for the NFL to show its good faith.
[20:36] Speaker 2: So they want to get rid of the suit before
[20:38] Speaker 2: discovery begins. When discovery begins, they'll be able to find
[20:42] Speaker 2: out who leaked the emails right absolutely.
[20:45] Speaker 5: Now.
[20:46] Speaker 1: You know, they can't go after the reporters because of
[20:48] Speaker 1: shield laws, so John Gruden can't subpoena reporters, but they
[20:52] Speaker 1: can serve discovery on the NFL asking for emails and
[20:55] Speaker 1: text messages of its key personnel to find out who
[20:58] Speaker 1: add access to these emails during its investigation of the
[21:02] Speaker 1: Washington football team, and after you know, you narrow it
[21:06] Speaker 1: down to that group who had contact with the Wall
[21:08] Speaker 1: Street Journal, we'll find out.
[21:10] Speaker 2: The NFL was also at the Nevada Supreme Court about
[21:14] Speaker 2: discovery in the lawsuit. Is it unusual to be going
[21:17] Speaker 2: to the supreme court of a state so often when
[21:20] Speaker 2: we haven't even gotten to the merits yet.
[21:23] Speaker 1: Yeah, there's been a lot of interlocatory appeals in this case.
[21:26] Speaker 1: It's very unusual. But when you have the resources of
[21:29] Speaker 1: the NFL and you want to run out the clock,
[21:31] Speaker 1: it's not surprising they They've advanced every appeal they can.
[21:35] Speaker 2: Gruden is going to seek testimony from league executives, prominent
[21:39] Speaker 2: team owners, and Goodell himself, Commissioner Goodell himself. Will they
[21:43] Speaker 2: likely get access to all those people in discovery or
[21:46] Speaker 2: will it be a fight?
[21:48] Speaker 1: Well, they likely get access to all the emails and
[21:51] Speaker 1: text messages from those key people. Whether they get live
[21:55] Speaker 1: testimony is another question. And I don't think they can
[21:58] Speaker 1: start at the commissioner level. We'll have to start at
[22:00] Speaker 1: lower level. Employees of the NFL and see what John
[22:03] Speaker 1: Gruden can get from those witnesses. And if they don't
[22:06] Speaker 1: get anywhere, then yeah, they can ask the court to
[22:08] Speaker 1: order the commissioner himself to show up for a deposition.
[22:11] Speaker 2: So is this anti slap motion a hail mary passed
[22:14] Speaker 2: by the NFL.
[22:15] Speaker 1: It is a hail lary in the sense that it
[22:17] Speaker 1: is so late. Most courts like these antislap motions heard
[22:21] Speaker 1: within the first sixty to ninety one hundred and twenty days,
[22:24] Speaker 1: not two years in, and so it's procedurally improper. Substantively,
[22:29] Speaker 1: I have to say it has merit in the sense
[22:31] Speaker 1: that the NFL has a colorable argument that this is
[22:35] Speaker 1: a First Amendment case, that speaking to the press is
[22:37] Speaker 1: an exercise of First Amendment activity. But I do think
[22:40] Speaker 1: John Gruden has enough of a case that he can
[22:43] Speaker 1: squeak by the anti slap analysis. Even if the anti
[22:46] Speaker 1: slap motion were timely, this case is going to escape
[22:49] Speaker 1: an anti slap motion to dismiss.
[22:51] Speaker 2: Why is the NFL trying so hard to delay delay.
[22:54] Speaker 1: Delay, Because they don't want their commissioner Coorse to sit
[22:57] Speaker 1: for a deposition, and because on Gruden, in addition to
[23:01] Speaker 1: unearthing his emails, will seek to unearth other embarrassing emails
[23:04] Speaker 1: and communications by either other coaches or other high level
[23:08] Speaker 1: executives of the NFL, and all of that dirty laundry
[23:11] Speaker 1: will come out in a public proceeding without the benefit
[23:14] Speaker 1: of the confidentiality of an arbitration. And so that's a
[23:17] Speaker 1: pressure point to use against the NFL to try to
[23:19] Speaker 1: get them to write a big check.
[23:21] Speaker 2: Yeah, I was going to say, they're delaying the inevitable
[23:23] Speaker 2: unless there's a settlement, right.
[23:25] Speaker 1: You know, most cases don't go to trial. Most cases settle.
[23:28] Speaker 1: The question is how much pressure can John Gruden assert
[23:32] Speaker 1: against the NFL to force a higher and higher settlement
[23:36] Speaker 1: check because this is not a case that either party
[23:39] Speaker 1: wants to try in public.
[23:40] Speaker 2: What does this case tell you about the need for
[23:42] Speaker 2: anti slap laws?
[23:44] Speaker 1: This case kind of highlights why every state needs an
[23:47] Speaker 1: anti slap law. You know, not all states have an
[23:50] Speaker 1: antislap law, and the anti slap law is what gives
[23:52] Speaker 1: the first Amendment. It's deep. If you're in a state
[23:55] Speaker 1: that doesn't have an anti slap law and you get
[23:57] Speaker 1: sued for something, you have to wait five years to
[24:00] Speaker 1: gata case, spend maybe half a million dollars in attorney's fees,
[24:03] Speaker 1: and if you're in a state with an antislap law,
[24:05] Speaker 1: you can cut the line, have a judge look at
[24:07] Speaker 1: your case early, have a judge determine whether or not
[24:10] Speaker 1: this is a frivolous case, and dismiss it or not,
[24:12] Speaker 1: and save to you that five years of litigation. And
[24:15] Speaker 1: Nevada and California have antislap laws, but only about half
[24:19] Speaker 1: the states do. And there has been some talk for
[24:21] Speaker 1: some time about passing a federal anti slap law so
[24:25] Speaker 1: that it's more uniform across the states, so that people
[24:28] Speaker 1: who legitimately need the protection of the First Amendment can
[24:32] Speaker 1: assert it in the first few months of a case,
[24:34] Speaker 1: not like the NFL did here two.
[24:35] Speaker 2: Years in you I'm curious the NFL has, we say,
[24:39] Speaker 2: limitless money to spend on lawyers. How is Gruden matching
[24:44] Speaker 2: up with it?
[24:45] Speaker 1: Most planuffs in his position will either pay their lawyers
[24:48] Speaker 1: on a contingency basis or a hybrid basis. And most
[24:51] Speaker 1: plaintiffs lawyers who take on a case against a high
[24:54] Speaker 1: profile defendmant like this, know that they're going to have
[24:57] Speaker 1: years of litigation and lots of procedural obstacles placed in
[25:01] Speaker 1: their way, lots of appeals. So I imagine whichever lawyer's
[25:04] Speaker 1: Gruden hired, those lawyers knew they were going to be
[25:07] Speaker 1: in for a very long fight. There's lots of technical
[25:09] Speaker 1: defenses that could be raised here, and even if John
[25:12] Speaker 1: Gruden were to go to trial and win, there will
[25:14] Speaker 1: be appeals after the fact. One of the interesting things
[25:17] Speaker 1: about this case is, you know, in most cases like
[25:19] Speaker 1: this involving emails, it's a claim of either defamation or
[25:23] Speaker 1: false light, meaning the emails suggests something false or that
[25:27] Speaker 1: puts the person who wrote the emails in a negative light. Here,
[25:31] Speaker 1: these emails are in John Gruden's own words. He wrote them,
[25:35] Speaker 1: and he's in the unique position of having to say, yeah,
[25:39] Speaker 1: I wrote some awful things. I wrote those things, I
[25:42] Speaker 1: said those things. But the NFL should not have released
[25:44] Speaker 1: them in a targeted fashion. And the NFL has the
[25:47] Speaker 1: interesting culture war argument. The NFL has the argument suggesting
[25:51] Speaker 1: they're trying to clean up their culture, combat homophobia and misogyny,
[25:56] Speaker 1: and releasing these emails was just part of its campaign
[25:59] Speaker 1: to clean up its image. Whether or not Discovery bears
[26:02] Speaker 1: either of those arguments out is something to be seen and.
[26:05] Speaker 2: We'll see if this really does go to trial next May.
[26:09] Speaker 2: Thanks so much, Jeff. That's First Amendment expert Jeff Lewis,
[26:13] Speaker 2: And that's it for this edition of The Bloomberg Law Show.
[26:16] Speaker 2: Remember you can always get the latest legal news on
[26:18] Speaker 2: our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify,
[26:23] Speaker 2: and at www dot bloomberg dot com slash podcast Slash Law,
[26:28] Speaker 2: and remember to tune into The Bloomberg Law Show every
[26:31] Speaker 2: weeknight at ten pm Wall Street Time. I'm June Grosso
[26:35] Speaker 2: and you're listening to Bloomberg

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