Important cases in the last two weeks of February, including EPA regulations, social media moderation, and bump stocks.
Wednesday, February 21
The EPA’s Good Neighbor Plan is first up today in Ohio v. EPA and US Steel v. EPA. As the Congressional Research Service notes (in a report that would be very helpful to review) the Good Neighbor Provision of the Clean Air Act “requires upwind states to ensure that their emissions do not interfere with the ability of downwind states to meet federal air-quality standards.” The EPA now requires states to submit plans for how they will comply with that requirement. And as an equally helpful SCOTUSBlog preview notes, “Last February, the EPA rejected the plans submitted by 21 states that proposed no changes to their emissions plans. Instead, one month later, it published a federal plan for the states whose plans it had rejected, as well as two that had not submitted plans.” This comes in the context of a sense that several conservative members of the Court are suspicious of administrative agency powers, as was on display at the “Chevron deference” case argued last month.
Expect this argument to run very long. A total of one hour has been scheduled for primary argument, but there are four arguing counsel. After the primary argument time expires for each arguing counsel, each justice gets one more round of questioning.
Today’s second argument is on a technical procedural issue concerning the statute of limitations under the Copyright Act, in Warner Chappell Music v. Nealy. See a brief from EFF, American Libraries Association, and others.
Monday, February 26 — social media moderation
Exceedingly important cases today asking whether the state can, consistent with the First Amendment, regulate how social media companies moderate content on their platforms. Florida and Texas have each passed laws restricting social media companies, although who is protected from moderation is different. In brief, the Florida law provides that “[a] social media platform may not take any action to censor, deplatform, or shadow ban a journalistic enterprise based on the content of its publication or broadcast“ and “may not willfully deplatform” or prioritize or shadowban a candidate for public office. The Texas law more broadly prohibits “censor[ing] a user, a user’s expression, or a user’s ability to receive the expression of another person” based on “viewpoint.”
The cases have received a great deal of attention so I will mostly just recommend the SCOTUSBlog preview. My own view is that there are strong reasons to doubt whether large social media companies are being responsible in the design and implementation of their products, but upholding the specific laws at issue in these cases will only make it harder to address the encroachment of hate speech, misinformation, and conspiracy theories that are substantial threats to the people’s ability to use social media for purposes that are key to free speech and a functioning democracy. For better or worse, large social media companies are the services from which Americans rent space for their “salon.” The public needs to be able to secure a venue from a provider who is not obligated to escort in guests who wish to insist that school shootings are “hoaxes,” even if that individual makes a living as a “journalist” or if the state might consider that a “viewpoint.”
The two cases (Moody v. Netchoice and Netchoice v. Paxton) have not been consolidated for argument, so expect arguments to run 3-4 hours.
Tuesday, February 27
Two technical issues today that I would not recommend for the casual observer.
McIntosh v. U.S. asks whether a district court may enter a criminal-forfeiture order outside the time limitations set forth in Federal Rule of Criminal Procedure 32.2.
Cantero v. Bank of America asks whether the National Bank Act preempts the application of state escrow-interest laws to national banks.
Wednesday, February 28 — bump stock ban and arbitration agreements
First up is an extremely important issue that is clearly summarized in the official question presented: whether a bump stock device is a “machinegun” as defined in 26 U.S.C. § 5845(b) because it is designed and intended for use in converting a rifle into a machinegun, i.e., into a weapon that fires ‘automatically more than one shot … by a single function of the trigger.'” Vox has a very useful summary of the issues in Garland v. Cargill.
The final February case involves arbitration clauses. The Court has generally (but not uniformly) favored those pushing for greater ability to enforce contracts mandating arbitration, against a variety of challenges. Sometimes it is not clear whether the specific dispute is covered by an arbitration agreement. And sometimes, a contract will provide that questions about whether a dispute is subject to arbitration should be decided by the arbitrator rather than a judge (“delegate questions of arbitrability,” in the lingo). But what happens if the parties have agreed to multiple contracts, only the earlier of which clearly sends such questions to an arbitrator? Hence the issue today in Coinbase, Inc. v. Suski: “whether, where parties enter into an arbitration agreement with a delegation clause, an arbitrator or a court should decide whether that arbitration agreement is narrowed by a later contract that is silent as to arbitration and delegation.”