Tag: free speech

February cases

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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.”

Oct 30/31 & early November cases

case suggestions

The next block of arguments include cases on asset forfeiture, First Amendment requirements for social media accounts of government officials, the ability to trademark “Trump Too Small,” and whether the Second Amendment allows the government to prohibit possession of firearms by persons subject to domestic-violence restraining orders.

Monday, October 30

Today is an asset forfeiture case and specifically a question of procedural due process. In Culley v. Marshall, Culley’s son was driving her car when police caught him with drugs and drug paraphernalia and seized the car. Twenty months later, the court ordered the car returned to Cully pursuant to Alabama’s “innocent-owner defense.” (Facts summarized on Oyez.) She later sued, alleging that the delay constituted a due process violation. Both lower courts ruled against her and the Court has accepted review on “What test must a district court apply when determining whether and when a post-deprivation hearing is required under the Due Process Clause?” Asset forfeiture is a subject of intense public attention from time to time, but with many outstanding issues. The list of amici supporting Culley (light green on this link) make for some unusual bedfellows!

Just one case today.

Tuesday, October 31

Halloween has a pair of cases on First Amendment issues involving social media accounts and whether public officials can block constituents from posting comments. Lindke v. Freed involves a city manager who was sued for blocking someone who had left comments on his personal Facebook account (relating to his handling of COVID issues). He won at the 6th Circuit, which held that the First Amendment did not apply where the Facebook page was not part of Lindke’s official duties. O’Connor-Ratcliff v. Garnier involves two school board members who created Facebook and Twitter accounts for their campaigns and later updated them with their elected titles and used the pages to communicate about school district business. This time, the 9th Circuit found that these pages were subject to the First Amendment and the board members had violated the rights of residents they blocked. Amy Howe has a useful overview of the legal issues. Also, it’s notable that Netchoice has filed an amicus brief; this is the organization challenging Texas and Florida laws regulating social media companies (on which the Court recently granted cert. – more later!)

Expect argument in these cases to run long; I’m guessing at least 3 hours, maybe 4. The cases have not been consolidated for oral argument (the only two-argument day this block), plus the Solicitor General is participating in both cases. After the time is up for each arguing counsel, the Justices now each get an additional round of questioning (in order of seniority), which makes for a significant amount of time after the “argument clock” has expired. And today, that will be times 6 arguing counsel (petitioner, respondent, and Solicitor General, times two cases).

Wednesday, November 1

Does the First Amendment require the government to register a trademark of “Trump Too Small”? The law prohibits the Patent and Trademark Office from registering a mark containing a living person’s name without that person’s consent. 15 U.S.C. § 1052(c). But the Federal Circuit held that the First Amendment did not allow enforcement of that bar under these specific circumstances. There may be a substantial governmental interest in protecting private parties from having others trademark their names in most circumstances, but not when it is a criticism of a public official: “As a result of the President’s status as a public official, and because Elster’s mark communicates his disagreement with and criticism of the then-President’s approach to governance, the government has no interest in disadvantaging Elster’s speech.” Interestingly, Public Citizen filed an amicus brief opposing registration, explaining that “registration would allow him to seek to prevent other members of the public from promoting their shared political antagonism using the same or similar words on shirts offered for sale.”

This is the only case set for argument today.

Monday, November 6

Today is an unusual issue of sovereign immunity under the Fair Credit Reporting Act. In Department of Agriculture Rural Development Rural Housing Service v. Kirtz, Kirtz sued the USDA for damaging his credit when it reported his account past-due even though it was paid off. In most cases, the federal government is immune from suit unless Congress has “unequivocally and unambiguously” waived immunity. The Fair Credit Reporting Act governs “persons” that it defines to include any “government or governmental subdivision or agency.” 15 U.S.C. § 1681a. The Third Circuit held that this was enough; “FCRA’s plain text clearly and unambiguously authorizes suits for civil damages against the federal government.” In so holding, the court acknowledged that “the [other] Courts of Appeals to have considered this issue are split down the middle.”

Tuesday, November 7

An extremely important Second Amendment case today: “Whether 18 U.S.C. § 922(g)(8), which prohibits the possession of firearms by persons subject to domestic-violence restraining orders, violates the Second Amendment on its face.” The Fifth Circuit noted that “Rahimi was involved in five shootings in and around Arlington” in just two months, but nevertheless held that the law cannot survive the new standard announced in Bruen last year, that the law must be “consistent with the Nation’s historical tradition of firearm regulation.” This is obviously a very contentious issue and much has been written so I won’t add more except to recommend Amy Howe’s explainer and call attention to the perspective of March For Our Lives in its amicus brief.

I would expect long and early lines for this argument. See my lines info post.

Wednesday, November 8

The final case in this block of arguments, as Oyez explains, “involves the interpretation of education benefits under two different programs for veterans.” It is quite technical and fact-specific, so see their explainer for more.

The next block of arguments starts November 27.

April 2023 Arguments

case suggestions

The last set of regularly scheduled arguments will be April 17-26 (Mondays to Wednesdays). There is one case that was granted cert. and has not yet been scheduled for argument, but it probably will be re-listed for argument next term. It’s also possible the Court will add an argument day (that would be extremely unusual, but so is the looming circuit split over Mifepristone….) but in all likelihood the Court will not hear cases after April 26 but will issue decisions roughly weekly until the end of June and then be on summer recess until First Monday in October.

Most of the April cases are on procedural issues or otherwise not ones I’d recommend for the casual observer, but there are a few important and interesting cases that deserve mention and your attention. I have also updated the information on attending in-person, and these cases should be particularly good choices for anyone looking for that experience!

Tuesday, April 18

A very important issue involving the scope of an employer’s Title VII obligation to accommodate religious observances is up first today, in Groff v. DeJoy. The text of Title VII prohibits discrimination on the basis of religion, 42 U.S.C. 2000e-2(a)(1), and defines that to include failure to accommodate an employee’s religious observance or practice unless the employer can demonstrate that it cannot do so “without undue hardship on the conduct of the employer’s business,” 42 U.S.C. 2000e( j). What that means, in turn, is the issue for today. In a seminal case in 1977, Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977), the Supreme Court held that an employer did not have to accommodate an employee’s observance of the Sabbath where the employer showed it would either have to operate shorthanded or pay other employees overtime. That holding is not as seriously questioned as the reason the Court gave for that holding — that an undue burden is one requiring the employer to bear “more than a de minimis cost.” In the years since, the lower courts have generally — but not universally — adopted the EEOC’s position that things like being shorthanded or having to pay premium wages are hallmarks of an undue burden, while largely ignoring the “more than a de minimis cost” line. The US Department of Justice has taken the position that “[l]ower courts have sometimes been led astray by Hardison’s ‘de minimis‘ language, and the Court can and should clarify that the EEOC has correctly interpreted Hardison to be consistent with substantial protection for religious observance and practice” while otherwise leaving the precedent in tact. The Court has also accepted cert. on the question of whether an accommodation that “burdens the employee’s coworkers rather than the business itself” meets the Title VII requirement, and the AFL-CIO has an amicus brief that focuses on that question, arguing that “[t]he fact that a proposed accommodation would interfere with an agreed-upon method of ensuring seven-day-per week coverage and fairly allocating undesirable shifts among employees is relevant to whether the accommodation would burden the ‘conduct’ of the employer’s business, regardless of whether an employer can prove it would cause any determinate level of economic harm. That is particularly true when the arrangement is embodied in a collective bargaining agreement.”

The second argument is on a pair of consolidated cases concerning the False Claims Act and its requirement that the false claim was submitted “knowingly.” It’s not one I would ordinarily recommend to a casual observer, but if you’re going to the above argument in person, it definitely would be worth staying for. In United States ex rel. Schutte v. SuperValu Inc., (a note on the name: Schutte is the “relator” (pronounced re-lay-tor), bringing a qui tam action in place of the US; the relator gets a portion of the funds recovered if they prove the government was defrauded under the FCA) the issue is whether “SuperValu knowingly filed false reports of its pharmacies’ ‘usual and customary’ (‘U&C’) drug prices when it sought reimbursements under Medicare and Medicaid.” The Seventh Circuit found that the filings were false, but also that they were based on an “objectively reasonable understanding of the regulatory definition of U&C price.”

It also held that the FCA requires a level of intent to defraud. The dissent characterized the issue as “whether the Act can reach businesses that submit false claims for government payment but claim there is some legal ambiguity that kept them from ‘knowing’ for certain that their claims were false.” Sen. Chuck Grassley has an interesting amicus brief arguing that the Seventh Circuit’s test “puts on the government a nearly impossible burden to anticipate and warn off future fraudsters from every colorable misinterpretation of the law” and that “[i]f it is not set right, it will not be long before the centerpiece of the government’s anti-fraud arsenal becomes unusable.” The Court has accepted cert. on “[w]hether and when a defendant’s contemporaneous subjective understanding or beliefs about the lawfulness of its conduct are relevant to whether it ‘knowingly’ violated the False Claims Act.”

Wednesday, April 19

The only argument today concerns what constitutes a “true threat” (rather than speech protected by the First Amendment) in the context of social media. In Counterman v. Colorado, Counterman began following musician C.W. on Facebook, was blocked when she found his posts “creepy” but kept following under new accounts, and ultimately sent her “messages [that] alluded to making ‘physical sightings’ of C.W. in public” (as found by the Colorado Supreme Court). He was prosecuted under a Colorado stalking statute that criminalizes repeatedly sending messages “that would cause a reasonable person to suffer serious emotional distress.” Colo. R.S. 18-3-602. The messages presumably are “speech” within the meaning of the First Amendment, so the question is whether it falls into a category of speech that may be criminalized consistent with those free speech protections; the Colorado Supreme Court held that this was a “true threat” and upheld the conviction. Courts are split on how to determine if something is a true threat. Some require a subjective intent to threaten, while others apply an “objective test” and ask only if a reasonable person would feel threatened in the “totality of the circumstances.” Some advocates suggest that an objective test is unworkable in the online context because those communications so frequently lack context to be able to objectively assess the totality of the circumstances.

The University of Miami Law Review has a useful backgrounder on all these legal issues. Notably, the ACLU argues that “a subjective intent requirement is critical to ensure breathing room for robust public debate,” while the Lawyers’ Committee for Civil Rights Under Law argues that “[r]equiring subjective intent to establish a true threat would vitiate anti-intimidation laws, especially voter intimidation laws.” Meanwhile, one group of “First Amendment Scholars” emphasizes that “Mr. Counterman was convicted for the crime of stalking, not threats” and therefore urges the Court to “affirm [the conviction] rather than announcing a rule that would require all communication-based stalking prosecutions to prove a ‘true threat, ‘” while another group of “First Amendment Scholars” including Erwin Chemerinsky argues that a “specific-intent requirement for stalking and other threats undermines, rather than protects, First Amendment values, including by depleting the marketplace of ideas, inhibiting counter-speech, and interfering with individual autonomy and association.” Those are just some of the 22 amici briefs filed in this case — it should be a really interesting argument (but expect it to run long!).

Wednesday, April 26

My final recommendation for a case to take in this term is the only one scheduled for the last day of the regular calendar this term, involving the takings clause in the context of foreclosures where the government keeps the surplus value beyond the back taxes that were owed. Tyler v. Hennepin County has so much interest that it already has its own Wikipedia page and has generated some 46 amici briefs! Briefly, as the 8th Circuit explained, “Tyler accumulated a tax debt of $15,000. To satisfy the debt, Hennepin County foreclosed on Tyler’s property and sold it for $40,000. The county retained the net proceeds from the sale.” The courts below all held that this was not an unconstitutional taking because the property was lawfully seized after reasonable notice and opportunities for Tyler to avoid that consequence; at that point, the entirety of the property was the government’s, and it was free to sell it for full value. At the point of sale, as the 8th Circuit held, “[w]here state law recognizes no property interest in surplus proceeds from a tax-foreclosure sale conducted after adequate notice to the owner, there is no unconstitutional taking.” Specifically in this case, Tyler “could have recovered the surplus by redeeming the property [paying back taxes prior to foreclosure] and selling the condominium, or by confessing judgment, arranging a payment plan for the taxes due, and then selling the property. Only after she declined to avail herself of these opportunities did ‘absolute title’ pass to the State.” Public Citizen has a useful amicus brief that walks through the taking clause analysis it believes should apply and argues that “[p]ermitting the government to take property to collect a tax debt without compensating the owner for the value exceeding the debt creates skewed incentives that disproportionately harm vulnerable people.”

Decision Days in May and June

The Court used to sit for decision days (mostly on Mondays) between the end of arguments and the end of June. The Court would take the bench and the author of the majority opinion would announce it (briefly summarize the holding), and sometimes a dissenter would also announce their dissenting opinion. All that was suspended during the pandemic, with the opinions simply posted to the website. But in January, they restarted the practice of announcing opinions from the bench. So hopefully there will be opportunities to be in the courtroom and hear decisions announced in May and June this year. We never know which opinions will be issued until it happens (except when we know it’s the last decision day on the calendar and there are just a few cases left!) but it can feel quite meaningful to be there for the announcement in a big case. You also typically don’t have to get in line nearly as early as for arguments. So something to consider if you’re in town in May and June (especially June, since there’s a trend of the most high-profile cases being decided last).

November 1-3 arguments

case suggestions

All the attention is on Monday’s arguments about the Texas anti-abortion law, but also see below for some interesting First Amendment and Second Amendment cases.

The Court’s audio page seems to be the best for listening in live. (Other options and info here.)

Monday, November 1 — SB 8

I try to focus this blog on cases you might not have heard enough about elsewhere — and the Texas anti-abortion law SB 8 is not in that category! So just a couple things that I’ll point out:

• There are two cases, not consolidated for argument purposes.
–So at 10:00, we’ll hear argument in Whole Woman’s Health v. Jackson, the case brought by doctors and clinics. The question in that case is “Whether a state can insulate from federal-court review a law that prohibits the exercise of a constitutional right by delegating to the general public the authority to enforce that prohibition through civil actions.”
–Then after that argument is concluded (probably around 11:30), we’ll hear argument in U.S. v. Texas on “Whether the United States may bring suit in federal court and obtain injunctive or declaratory relief against the state, state court judges, state court clerks, other state officials, or all private parties to prohibit Texas Senate Bill 8 from being enforced.”

• It’s in that second case that attorney Johnathan F. Mitchell has been given 10 minutes of Texas’s 30 minutes to argue on behalf of “intervenors” (Texas residents who support the law, but don’t represent the state itself). In the 5th Circuit, Mitchell’s brief argued that states are not required to follow Supreme Court holdings; that “federal and state political branches have every prerogative to adopt interpretations of the Constitution that differ from the Supreme Court’s.” Reply Brief, US v. Texas, No. 21-50949 (5th Cir. Oct. 14, 2021).

Tuesday, November 2

First up is a First Amendment case involving censure of elected officials — one that, especially in light of January 6, might be getting a lot more attention if it weren’t for yesterday’s cases taking so much focus. The plaintiff in Houston Community College System v. Wilson was an elected member of the HCC board. Harvard Law Review has a useful description of the legal issues; I’ll quote their summary of the factual summary: “After trustee David Wilson disagreed with the majority’s funding decisions, he publicly criticized his fellow trustees through automated phone calls, a website, and local radio, accusing them of failing to represent their constituencies. Adding to the tension, Wilson hired private investigators to surveil HCC and a fellow trustee at her residence. In response, the Board censured Wilson, denouncing his recent behavior as against HCC’s interests and violative of bylaws, including one about ‘respect for . . . collective decision-making.’ Wilson sued HCC under 42 U.S.C. § 1983, alleging that the censure violated his right to free speech.”

The second case today is a technical civil procedure matter involving cases that challenge arbitration awards. If interested, read the 5th Circuit opinion.

Wednesday, November 3

Just one case today, a Second Amendment issue involving New York’s “proper cause requirement” for concealed-carry licenses. See an overview here. Lots of attention to this one — New York State Rifle & Pistol Association Inc. v. Bruen has 87 amicus briefs! I recommend reading the Second Circuit ruling and a couple of briefs, all available here. For people interested in international law, note the brief from Amnesty International. And it’s always worth reading a brief from the NAACP LDEF.

[There are cases scheduled for Nov 8-10 as well, including a case involving the FBI about FISA and the states secrets privilege. But I wanted to get the above posted and will make a new post later on those cases.]

February cases

case suggestions

In the last two weeks of the month, the Court will hear arguments regarding union agency or “fair share” fees, political t-shirts worn to the voting booth, subpoenas to US companies for information stored on foreign servers, and other important issues.

Tuesday, February 20
(the Court observes Presidents Day on Monday)

Currier v. Virginia is a fairly technical issue regarding double jeopardy.  The doctrine of “issue preclusion” aka “collateral estoppel” prevents re-trial of a fact that was necessarily determined by a jury in a prior case.  So even if the defendant is not charged with the same crime, it might still constitute double jeopardy if the second criminal offense relies on a factual question that a jury resolved in favor of the defendant in an earlier trial.  In this case, the defendant was accused of stealing guns.  He had a prior felony conviction, so it would have been illegal for him to even possess the guns.  With his agreement, the state first tired him for larceny and breaking and entering, and severed the charge of “felon in possession of a firearm.”  The jury found in favor of the defendant in the first trial, but the state proceeded to try him for possession anyway, and this time convinced the jury.  The issue is whether issue preclusion, and thus the double jeopardy clause, applies even where the defendant agreed to sever the charges.  The arguments on both sides are described in scotusblog’s preview.

The second case today, City of Hays, Kansas v. Vogt, involves the right against self-incrimination, interestingly in the context of alleged police misconduct.  Under threat of being fired, a police officer told his supervisors how he came into possession of a knife while on duty.  He was then charged with a range of crimes, and although the charges were dropped before trial, the officer’s statements regarding the knife were used against him during a probable cause hearing. When he had trouble finding another job, he sued the City for violating his constitutional rights.  The Fifth Amendment prohibits being “compelled in any criminal case to be a witness against [oneself].”  It’s fairly settled that threat of termination is compelled, but is use during a preliminary proceeding covered by the amendment? The City is being represented by the UVA Law School’s Supreme Court Litigation Clinic, which has an useful story about the case. The Court accepted cert. on the question “Whether the Fifth Amendment is violated when statements are used at a probable cause hearing but not at a criminal trial.”  A collection of government employers filed an amicus brief urging the Court to hold that the city cannot be held liable for the decision of the prosecutors; it will be interesting the see if the Court views this as within the scope of the question they agreed to review.

Wednesday, February 21

Both cases today will be a bit technical for the casual observer, but nevertheless should be interesting.

First, Rosales-Mireles v. U.S. involves waiver and plain error, in the context of illegal immigration. The defendant pleaded guilty to “illegal reentry” (returning to the US after being deported).  He had a prior criminal history, which increases the sentence.  However, the trial court counted a prior conviction for misdemeanor assault twice.  The government concedes that this was in error and placed him in the wrong sentencing guidelines category (77-96 months instead of the correct 70-87 months; he got 78 months). However, there was no objection at the time of sentencing, which means that an appellate court may only correct it if it constitutes “plain error.”  In the Fifth Circuit, this means not only obviously wrong but is the kind of error “that would shock the conscience of the common man, serve as a powerful indictment against our system of justice, or seriously call into question the competence or integrity of the district judge.”  The Circuit held that this error was not of that nature, and declined or order re-sentencing. The Supreme Court has accepted cert. to resolve whether that final condition for plain error review is appropriate.

For the second case, Dahda v. U.S., the official question presented is probably sufficient:  “Whether Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510–2520, requires suppression of evidence obtained pursuant to a wiretap order that is facially insufficient because the order exceeds the judge’s territorial jurisdiction.”

Monday, February 26

An extremely important case involving union “agency fees” or “fair share fees” is up first today, Janus v. AFSCME. In order to prevent discrimination based on union membership, the National Labor Relations Act requires that all employees be covered by a union contract — so workers are not getting different wages or working conditions depending solely on whether or not they joined the union.  But negotiating, administering, and enforcing a contract costs money.  Therefore, the Supreme Court held in Abood v. Detroit Board of Education (1977) that even employees who decline to join the union can be required to pay the union for these expenses.  Unions are required to calculate their spending precisely, and bill non-members an appropriate fraction of the membership fee; only money collected from voluntary members may be spent on non-workplace activities (like electoral campaigns).  This principle has been under attack in recent years, and many people predicted that Justice Scalia would have been the fifth vote to reverse these precedents if he hadn’t died after cert. was granted in Friedrichs v. California Teachers Ass’n but before a decision was issued.  The resulting 4-4 split left in place the Circuit court’s decision, which had ruled for the union based on those longstanding precedents.  This case brings the issue back to the Court. Scotusblog has a useful overview as well as an online symposium with a range of views.  This is a very important case and will draw a lot of attention — and early and long lines to get inside, but also press conferences and protests out front.

Ohio v. American Express is an antitrust case, arising out of differences in how AmEx, compared with Visa and MasterCard, set prices and work with merchants.  The Second Circuit sided with AmEx, but an unusually wide range of organizations are lining up on the other side.

Tuesday, February 27

The clash of new technology and old legal presumptions is on display in US v. Microsoft.  The federal government served a subpoena on Microsoft at their Washington state headquarters for emails of a suspected drug dealer. It agreed to turn over records stored in the US, but not the content of the emails, which were stored in servers in Ireland.  There is a general presumption that US laws do not apply outside the US (extraterritorial application), and the Court has never resolved how this relates to the Stored Communications Act or technology of this nature in general.  There are lots of interesting and nuanced concerns about effectiveness of our laws but the need to avoid putting international actors in a conflict with other countries’ laws.  Scotusblog has an overview and an online symposium with some really compelling insights.

An absurd example of First Amendment retaliation hits an 11th Circuit doctrine in Lozman v. City of Riviera Beach, Florida.  During the public comment portion of a City Council meeting, Mr. Lozman was instructed by a council member not to discuss his opposition to an eminent domain plan, and he was arrested when he persisted.  The transcript of an earlier meeting revealed a plan by council members to “intimidate” him.  He sued, but lost the trial and sought a new trial on various grounds.  The 11th Circuit held that the police officer had probable cause to arrest him for disrupting a public meeting, and therefore there could be no lawsuit for unconstitutional retaliation or any other grounds, because of the Circuit’s rule that a finding of probable cause bars any other such claims.  See this overview and the ACLU position.

Wednesday, February 28

First Amendment protection for political expression at the voting booth is the issue in Minnesota Voters Alliance v. Mansky:  “Whether Minnesota statute Section 211B.11, which broadly bans all political apparel at the polling place, is facially overbroad under the First Amendment.”  Again, Scotusblog has a useful overview and interesting symposium.

February cases

case suggestions

This month, the Court will consider a wrongful death claim involving a cross-border shooting by a Border Patrol agent, arbitration agreements in the context of alleged wrongful death of nursing home residents, and sex offender laws in immigration and free speech contexts.

Tuesday, Feb 21

A tragic case made more politically interesting in the context of current US-Mexico tensions is up first today, in Hernández v. Mesa. A 15 year-old boy was shot and killed by a US Border Patrol agent.  The agent fired from US territory, but the boy was in Mexico.  That much is undisputed; the parents say he was playing a game that involved touching the fence and running back, while the agent says this was part of an illegal border crossing that involved a group throwing rocks at agents. But the Court will decide only whether this dispute can get as far as trial:  does the 4th Amendment apply to use of force under these circumstances, and can the parents bring a suit like this?  A through description of all the legal issues is available here.

McLane Co v. EEOC is a more procedural issue without much suspense.  Federal courts enforce or quash (cancel) subpoenas issued by federal agencies like the EEOC.  All but one Circuit court decides based on whether the EEOC abused its discretion (which is deferential toward the agency), but the 9th does so based on de novo review (its own original determination, with no deference to the agency). Interesting arguments on both sides are described here.

Wednesday, Feb 22

The Court hears only one case today, involving arbitration agreements, which have been the subject of much controversy recently.  Historically, the Court has held that the Federal Arbitration Act serves as a very serious obstacle to any state laws that would restrict the enforceability of arbitration agreements.  Kindred Nursing Centers v. Clark involves deceased residents of a nursing home whose “principals” (individuals who held their power of attorney) sued the home for for wrongful death, personal injury, and violations of certain Kentucky laws protecting nursing home residents.  The home sought to dismiss the cases based on the mandatory arbitration agreement those principles had signed on behalf of the residents, but the Kentucky Supreme Court held that they lacked authority to enter the arbitration agreement because the right to a jury trial and to appeal to higher courts are fundamental constitutional rights that cannot be waived absent express authority to do so. A thorough discussion of the case is available here.

Monday, February 27

The Court takes on sex offender laws in two cases today, in immigration and free speech contexts.

The question in Esquivel-Quintana v. Sessions is: Whether a conviction under one of the seven state statutes criminalizing consensual sexual intercourse between a 21-year-old and someone almost 18 constitutes an “aggravated felony” of “sexual abuse of a minor” under 8 U.S.C. § 1101(a)(43)(A) of the Immigration and Nationality Act – and therefore constitutes grounds for mandatory removal.

In Packingham v. North Carolina, the issue is: Whether, under the court’s First Amendment precedents, a law that makes it a felony for any person on the state’s registry of former sex offenders to “access” a wide array of websites – including Facebook, YouTube, and nytimes.com – that enable communication, expression, and the exchange of information among their users, if the site is “know[n]” to allow minors to have accounts, is permissible, both on its face and as applied to petitioner, who was convicted based on a Facebook post in which he celebrated dismissal of a traffic ticket, declaring “God is Good!”

January Cases

case suggestions

This week, the Court considers a free speech challenge to credit card surcharges, litigation sanctions, and what standards for a free appropriate public education for students with disabilities.  Next week, the Court takes on both disparaging trademarks and the rights of detainees who claim they were held in severe conditions of confinement based only on racial profiling.

Tuesday, January 10

An interesting case this morning involves claims of free speech rights in an unusual context:  credit card fees.  Merchants pay a fee to credit card companies, but ten states prohibit them from passing on that fee as a “surcharge.”  The group of merchants in Expressions Hair Design v Schneiderman argue that this prohibition is an unconstitutional limitation on speech.  The Second Circuit rejected that, holding that it only regulates commercial practices (conduct, not speech), but the merchants note that the law allows them to offer a discount for paying with cash, so as a practical matter, it regulates what they call it rather than what they charge.

The second case, Goodyear Tire & Rubber Co. v. Haeger, involves the scope of a court’s inherent power to award attorney fees and other sanctions where a party engages in some form of litigation misconduct.

Wednesday, January 11

The Individuals with Disabilities Education Act (IDEA) requires states to provide children with disabilities with a “free appropriate public education” (FAPE), but that is not fully defined.  Some courts, including the lower courts in this case (Endrew F. v. Douglas County School District), have held that it requires only that the state provide some sort of education that is of more than minimal value to the student.  Other courts, and the Obama Administration in this case, have argued that this is not enough, and the standard should involve a “meaningful” education.

[This is the only case being argued today, and is scheduled for one hour.  However, the Solicitor General is arguing along with the parties, so it may run a few minutes long.]

Wednesday, January 18

Two significant and contentious issues are before the Court today.

First, the Court considers the provision in the Trademark Act that allows for refusal to register the trademark if it would “disparage . . . persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.” 15 U.S.C. 1052(a). The specific case (Lee v. Tam) involves Samuel Tam, who named his band The Slants in order to bring attention to discrimination against Asians, “following in the long tradition of reappropriation, in which members of minority groups have reclaimed terms that were once directed at them as insults and redirected the terms outward as badges of pride.”  This case will have implications for the current name of the Washington football team, among other contentious current issues.

Next, the court considers detainee rights in Ziglar v. Abbasi and Hasty v. Abbasi, which allege that, in the aftermath of the 9/11 attacks, individuals were arrested and detained in extreme conditions on the basis of no evidence other than race, religion, and national origin.  The Atlantic offers an overview and makes predictions of the sort of reception the cases are likely to receive.  The Center for Constitutional Rights has detailed information about their case.  [The parties had requested additional time for argument, but that was denied and the cases are considered with one hour total.  I would expect it to run a little long nonetheless.]

 

Inaugural Parade Protests (DC Cir)

case suggestions

The D.C. Circuit Court of Appeals will hear arguments on Monday (Nov. 14) in a case involving the rights of protesters to line the Inaugural Parade Route on January 20, 2017.  The Partnership for Civil Justice went to court back in 2000 and successfully secured access for protesters on Inauguration Day 2001, but according to this release:

In an unprecedented court filing, the U.S. Government and its Justice Department argue that the government may take the public parklands, sidewalks and streets of America at the central moment of their use by the people for assembly, speech and debate, and petitioning of the government and redesignate our public spaces into exclusive “government speech” or No Free Speech Zones. There is no limitation to the scope of these zones.

Circuit arguments are open to the public and typically do not draw much of a crowd, although it would be wise to get there a bit early for Monday’s.

Monday, November 14 – 9:30 a.m.
US Court of Appeals for the DC Circuit
333 Constitution Avenue
Courtroom 31

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