in justice breyer's hypothetical, there's clear, objective evidence. we don't want to use this testimony, perhaps it's counterproductive in our case, we're not going to use this testimony, but we would like to hold the person. i think that is very difficult for a reasonable official to say to themselves, this statute grants me preventive detention powers. i mean, i think you would be looking at a statute going back to 1789 that this court has repeatedly commented on that is only about testimony. you would be saying to yourself, this statute allows me to engage in preventive detention even though congress has never passed a statute like that, congress specifically rejected preventive detention powers-- >> -- you don't think that an official reading all this court's cases saying subjective motivation is not proper in determining the application of the fourth amendment would be able to think that this would apply here, too? subjective motivation doesn't count here, what counts is whether there's -- there are objective criteria that would permit the detent

she's justice rehnquist, justice o'connor, justice kennedy and justice breyer.and it's interesting to see how that plays out. chief justice roberts and justice alito has taken the pragmatist's seat formerly held by rehnquist and o'connor said the protest group remains, kennedy, breyer, roberts and alito. what has happened to squeeze a's majority in this case is that he's still got his justice thomas who concurs especially in this case. >> on the same base in these other ones. >> but the -- what he has lost his souter and replaced by a former prosecutor. justice sotomayor and this is the first time my the we've seen what may be a switch and not come perhaps thomas would have made it inevitable in any event. but you see the first switch of the replacement of sotomayor moving and coming out with a pragmatic wall enforcement result partly as a result of sotomayor coming in. >> you are absolutely right. one thing justice scalia said is when he said of the one virtue that can be called a virtue, misnamed a virtue is it makes us easy to decide the way that we would lik

in justice breyer's hypothetical, there's clear, objective evidence. we don't want to use this testimony, perhaps it's counterproductive in our case. we're not going to use this testimony, but we would like to hold the person. i think that is very difficult for a reasonable official to say to themselves, this statute grants me preventive detention powers. i mean, i think you would be looking at a statute going back to 1789 that this court has repeatedly commented on that is only about testimony. you would be saying to yourself, this statute allows me to engage in preventive detention even though congress has never passed a statute like that, congress specifically rejected preventive detention powers - >> you don't think that an official reading all this court's cases saying subjective motivation is not proper in determining the application of the fourth amendment would be able to think that this would apply here, too? subjective motivation doesn't count here. what counts is whether there's -- there are objective criteria that would permit the detention

i think that was part of what justice breyer was asking. is that what your position is? >> public speech event directed to a private figure should be treated differently than as directed towards a public official. >> all right. and under what theory of the first amendment would we do that? what case would stand for the proposition that public speech or speech on a public matter should be treated differently depending on the recipient of the speech? >> gertz versus welsh treated the public versus private figure. >> that was defamation, wasn't it? that's all truthful. >> correct. correct. the problem is the only other case that we have that deals with intentional inflection of emotional distress is holster versus folwell. it interpreted as public figure. they have said it's not a private figure. >> but have it done it in the context of differentiating between public and private speech? >> yes, there's a illinois case that we cited in the brief where they said it was a matter of public concern. they said the plaintiff was not a public figure, therefore, does it meet the ele

in justice breyer's hypothetical, there's clear, objective evidence. we don't want to use this testimony, perhaps it's counterproductive in our case. we're not going to use this testimony, but we would like to hold the person. i think that is very difficult for a reasonable official to say to themselves, this statute grants me preventive detention powers. i mean, i think you would be looking at a statute going back to 1789 that this court has repeatedly commented on that is only about testimony. you would be saying to yourself, this statute allows me to engage in preventive detention even though congress has never passed a statute like that, congress specifically rejected preventive detention powers - >> you don't think that an official reading all this court's cases saying subjective motivation is not proper in determining the application of the fourth amendment would be able to think that this would apply here, too? subjective motivation doesn't count here. what counts is whether there's -- there are objective criteria that would permit the detention

she's justice rehnquist, justice o'connor, justice kennedy and justice breyer.and it's interesting to see how that plays out. chief justice roberts and justice alito has taken the pragmatist's seat formerly held by rehnquist and o'connor said the protest group remains, kennedy, breyer, roberts and alito. what has happened to squeeze a's majority in this case is that he's still got his justice thomas who concurs especially in this case. >> on the same base in these other ones. >> but the -- what he has lost his souter and replaced by a former prosecutor. justice sotomayor and this is the first time my the we've seen what may be a switch and not come perhaps thomas would have made it inevitable in any event. but you see the first switch of the replacement of sotomayor moving and coming out with a pragmatic wall enforcement result partly as a result of sotomayor coming in. >> you are absolutely right. one thing justice scalia said is when he said of the one virtue that can be called a virtue, misnamed a virtue is it makes us easy to decide the way that we would lik

she's justice rehnquist, justice o'connor, justice kennedy and justice breyer.and it's interesting to see how that plays out. chief justice roberts and justice alito has taken the pragmatist's seat formerly held by rehnquist and o'connor said the protest group remains, kennedy, breyer, roberts and alito. what has happened to squeeze a's majority in this case is that he's still got his justice thomas who concurs especially in this case. >> on the same base in these other ones. >> but the -- what he has lost his souter and replaced by a former prosecutor. justice sotomayor and this is the first time my the we've seen what may be a switch and not come perhaps thomas would have made it inevitable in any event. but you see the first switch of the replacement of sotomayor moving and coming out with a pragmatic wall enforcement result partly as a result of sotomayor coming in. >> you are absolutely right. one thing justice scalia said is when he said of the one virtue that can be called a virtue, misnamed a virtue is it makes us easy to decide the way that we would lik

i think that was part of what justice breyer was asking. is that what your position is? >> public speech even directed to a private figure should be treated differently then as directed towards a public official. >> alright and under what theory of the first amendment would we do that? what case would stand for the proposition that public speech or speech on a public matter should be treated differently, depending on the recipient of the speech? >> gertz birchers welch treated the public versus private status different. >> that was defamation, wasn't it? >> correct, but the only other case we have to use with intentional emotional distress. from this court in hunter versus falwell, hunter versus falwell clearly dealt with a public figure. the states has interpreted as not applying to a private figure. >> but have they done it in the context of differentiating between public and private speech? >> yes, in a case we cited in a brief where it was specifically saying it was a matter of public concern and they said the plaintiff was not a public figure. therefore, it meets th

less satisfied editor if you all the way to ring the torso parque site with footnote 27 as justice breyerhas done, and to look at the role of this date, it turns out in the district court opinion that's in the midsection of the opinion. courts already held contrary to hold tennessee electric veggie chili companies there have standing. so what you see is it still happens if you apply the test you hopelessly conflict the merits and the standing question. that's a bad approach. it should perfect the can't decision by saying this since no longer survives. two other minor point. one is on the congress cause i think justice of your shows why the justice is right to never make that argument by do think it's important if the courses and think about the clause issue it doesn't somehow reinjected in the case in a way that would not allow us to argued that it's been clearly weight in the third third circuit. it doesn't get to confess actually the better argument to defend the statute that was never raise before. it should be a two-way street. they should not be allowed to speak the congress cause ba

there was a very vigorous dissent written by justice breyer and supported by four of the justices. the question is where is this repute or cameras in the courtroom come from? well, the modern disrepute i think traces to the case in the early 1960's. the prosecution of an alleged swindle by the name of billy estes who claimed in association with the then vice president of the united states lyndon johnson, and of course was that connection that drew the public interest. in september, 1962, there was a today during a broadcast on radio and television devoted solely to the motions for the continuance of the trial and the motion to prohibit broadcasting of the trial. it was as described by the supreme court not a scene of judicial serenity. 12 cameramen were in the courtroom, cables and wires sneaked across the floor, there were microphones across the courtroom. well, the motion was granted. de turenne for the trial in september was dismissed and that was the end of the proceedings and essentially the end of the broadcasting. the trial took place about a month later in october 22, 1962.

a very vigorous dissent written by justice briar and supported by four of the justices -- justice breyernd supported by four justices. where does this repute for cameras in the court room come from -- where does this disrepute come from? the modern disrepute is related to a case in the early 1960's. the prosecution of an alleged swindler who claimed an association with new then price -- vice-president of the united states, lyndon b. johnson. it was of course, that connection, that drew the public's interest. in september of 1962, there was a two-hearing broadcast live on radio and television devoted solely to his own ship -- motion for continuance of the child and made a motion to prohibit broadcasting of the trial. it was as described by the supreme court, not a scene of judicial serenity. cameramen were in the court room. cables and wires snaked across the floor. wires throughout the court room. as this motion was granted, the canary that was drawn into the trial in december was dismissed, and that was the end of the proceedings and essentially the end of the broadcasting. the trial to

there was a very vigorous dissent written by justice breyer and supported by four of the justices. the question is where is this repute or cameras in the courtroom come from? well, the modern disrepute i think traces to the case in the early 1960's. the prosecution of an alleged swindle by the name of billy estes who claimed in association with the then vice president of the united states lyndon johnson, and of course was that connection that drew the public interest. in september, 1962, there was a today during a broadcast on radio and television devoted solely to the motions for the continuance of the trial and the motion to prohibit broadcasting of the trial. it was as described by the supreme court not a scene of judicial serenity. 12 cameramen were in the courtroom, cables and wires sneaked across the floor, there were microphones across the courtroom. well, the motion was granted. de turenne for the trial in september was dismissed and that was the end of the proceedings and essentially the end of the broadcasting. the trial took place about a month later in october 22, 1962.

kennedy briar -- breyer -- what has happened is scalia has the gotrity is that he's still justice thomas >> on the same buses he has done in all these other ones. -- on the same basis. >> what he has lost is souter. he is replaced by a former prosecutor, justice sotomayor. this is the first time we have seen what may be a switch. thomas would have made it inevitable, but you see the first switch with the court moving and coming out with a pragmatic result partly as a result of sotomayor coming in for a suitor. >> you are absolutely right. one thing justice scalia said is when he said the one virtue -- he misnamed the virtue. it makes as easy to decide the way we like to. it makes it easy for it to come out the way we think is fair. that is what you're saying. >> let me turn to a different topic. it appears some stage are challenging the health care law. -- some states are challenging the law. it is expected one day this might make the supreme court. when do you think it will make the court? what are your thoughts on what the court will do with it? >> in terms of when it will be decided b