The January argument calendar includes some very high-profile cases — the TikTok ban and age verification on porn sites — as well as some very important cases that have received less public attention involving police shootings, ADA coverage, the First Step Act, false versus misleading statements (by a Daley family member), and administrative agency interpretations of federal statutes.
See menus at the top of the page for information about attending arguments in person or listening in online.
Friday, January 10 – the TikTok ban
The Court will sit for an unusual Friday session today in order to hear oral argument in TikTok, Inc. v. Garland: “Whether the Protecting Americans from Foreign Adversary Controlled Applications Act, as applied to petitioners, violates the First Amendment.”
Although the bottom-line positions and sides are very well known in this high-profile case, a major legal question is the level of scrutiny, also known as the legal test or framework. The government argued that this case does not implicate the First Amendment (and would only have to satisfy rational basis review) for two reasons: that it regulates ownership rather than speech, and that it regulates a foreign entity with no First Amendment rights. The DC Circuit rejected that argument, noting that the curation of content is speech and TikTok includes domestic entities whose activities are regulated by the law. TikTok argued that strict scrutiny applies (under which the law can only be upheld if it serves a compelling governmental interest and is narrowly tailored to that interest) because it is content-based, in that the law “single[s] out a particular speaker.” The DC Circuit also rejected that, reasoning that the government justifies the law on the basis of national security concerns with foreign control/ownership. Although some of the government’s justifications reference content, “content on the platform could in principle remain unchanged after divestiture, and people in the United States would remain free to read and share as much PRC propaganda (or any other content) as they desire on TikTok or any other platform of their choosing.”
On this question of level of scrutiny, I call your attention to the amicus brief of Asian Americans Advancing Justice and the Fred T. Korematsu Center for Law and Equality (out of UC Irvine Law), filed in support of neither party and expressing concern that “Targeting Speech on the Basis of National Domicile Is Content-Based and Viewpoint Discrimination” and quoting the dissent in the infamous Korematsu case for the principle “that ‘it is essential that there be definite limits to’ the deference accorded to claims of national security, for ‘[i]ndividuals must not be left impoverished of their constitutional rights on a plea of military necessity that has neither substance nor support.’” Amicus brief at 3, quoting Korematsu v. United States, 323 U.S. 214, 233 (1944) (Murphy, J., dissenting).
The DC Circuit reasoned that intermediate scrutiny, under which a law is constitutional “if it advances important governmental interests unrelated to the suppression of free speech and does not burden substantially more speech than necessary to further those interests,” was the proper standard — but it then proceeded to explain that its decision would not apply that standard or rest on the conclusion that it rather than strict scrutiny applies because the law satisfied even the more demanding standard of strict scrutiny. It then proceeded to hold that the national security, data collection, and content manipulation concerns were compelling governmental interests, and that the law is narrowly tailored “because [the restrictions] are limited to foreign adversary control of a substantial medium of communication and include a divestiture exemption.” It also rejected TikTok’s suggestion for an alternative framework (confusingly referred to as the NSA, for National Security Agreement), holding that the courts were not in a position “to reject the Government’s risk assessment and override its ultimate judgment.”
Of course, the President-elect submitted an amicus brief that received considerable attention, arguing that the Court should “stay the statute’s effective date to allow his incoming Administration to pursue a negotiated resolution.” That suggestion gets no mention in TikTok’s reply brief and only three sentences in the government’s reply brief, which rather summarily dismisses the legal basis for such a move. It would have been fairly standard and expected for an incoming president to offer a position on the constitutionality of a major act of congress like this, but Trump’s brief expressly “takes no position on the merits of the dispute.” The brief was authored by D. John Sauer, who represented Trump in the presidential immunity case and who reportedly is Trump’s pick for Solicitor General (who represents the administration before the Court).
There will be three arguing counsel today: TikTok and “creator petitioners” on one side will have 15 minutes each to argue against the law for different reasons, and then the government has 30 minutes to defend the law and the decision below. As in all cases now, when the time expires for each arguing counsel, the Justices go in order of seniority with a final round of questioning. So with three instead of two rounds of that, expect the arguments to run even longer than usual.
Monday, January 13
First Step Act – Hewitt v. US
The first case today involves retroactivity of the First Step Act, which is a major criminal justice reform law enacted in 2018. The “Scarecrow Bandits” were convicted of a series of bank robberies in 2008 the Dallas-Fort Worth area. Among other things, the First Step Act changed the sentences for use of a firearm in furtherance of a bank robbery, including the mandatory minimum and the process of “stacking,” under which first, second, and subsequent violations of the law could arise out of the same incident. The First Step Act also contains a peculiar retroactivity provision, providing that it applies where the offense occurred prior to enactment only “if a sentence for the offense has not been imposed as of such date of enactment.” The petitioners in Hewitt v. US were sentenced back in 2008 but then sought appeals and resentencing, some of which were successful to a limited extent, in 2020. As the 5th Circuit put it, “But does the First Step Act’s reach encompass prior offenses for which a pre-Act sentence is later vacated? Can it be said that such a sentence ‘has not been imposed’?”
The 5th Circuit held that Hewitt was not able to use the First Step Act. Before the Supreme Court, the federal government says that was probably wrong and a better reading of the First Step Act is that its “amended statutory penalties apply at any sentencing that takes place after the Act’s effective date, including a resentencing” — but the government nevertheless asked the Court not to take the case and to allow the circuit’s decision to stand because the issue has such limited applicability as a practical matter (including because Congress might clarify the law in the near future). The Court took the case and asked a former clerk to argue in support of affirming the circuit’s decision.
ADA – Stanley v. City of Sanford, Florida
Today’s second case has a rather compelling question presented: “Whether, under the Americans with Disabilities Act, a former employee — who was qualified to perform her job and who earned post-employment benefits while employed — loses her right to sue over discrimination with respect to those benefits solely because she no longer holds her job.”
The case turns on the language of the ADA, which makes it unlawful to “discriminate against a qualified individual with a disability.” 42 U.S.C. § 12112. Stanley worked as a firefighter for nearly two decades, then retired due to Parkinson’s. While she was employed, the department changed its retiree healthcare coverage: most would be covered until age 65, but disabled retirees would be covered for only two years after retirement. She sued just before that two year period ended. The 11th Circuit held that she was no longer covered by the ADA because she was no longer “a qualified individual with a disability,” which in turn is defined as someone “who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” As a retiree, she no longer holds or desires any position with the department.
Other Circuits have held the opposite, and there’s a useful explainer and brief from one advocacy organization. Expect the arguments to run rather long, since the federal government has requested and been granted leave to participate in the arguments (so there will be an extra round of questions, as noted for the TikTok arguments discussed above).
Tuesday, January 14
“False” statements and Chicago power families – Thompson v. US
Today’s first case involves Patrick Daley Thompson, a relative of Chicago mayoral icons (grandson of Richard J. Daley and nephew of Richard M. Daley). He signed a promissory note for $110,000 then took out two more loans totaling almost as much; no paperwork was required for the final two loans. The bank apparently never tried to collect more than one $390 payment and went insolvent several years later. When the FDIC took over and another bank was charged with collecting funds owed to Washington Federal Bank for Savings, he professed confusion: “the numbers that you’ve sent me shows that I have a loan for $269,000. I—I borrowed $100,000 . . . I signed a Promissory Note . . . for $100,000.” (Recorded phone conversation reprinted in the 7th Circuit opinion.) When the truth came out, he was charged with violation of a federal law that prohibits making a “false statement” concerning a loan with a federally insured bank, 18 U.S.C. § 1014. His defense is quite brazen:
- As Thompson sees it, he never outright lied. For example, rather than stating that he owed only $110,000, he just said that he borrowed $110,000—which is true even if he later borrowed more. Although Thompson acknowledges that his statements may have misrepresented what he owed, he contends that the statute does not reach statements that are misleading but literally true. (7th Circuit opinion.)
The petition for certiorari notes that there is a “circuit split.” “Three circuits—the First, Sixth, and Eleventh—interpret the statute literally, to criminalize only the making of statements that are false. Four other circuits—the Fifth, Eighth, Tenth, and now the Seventh—interpret the statute more broadly, to prohibit not only false statements but also misleading statements.” It should be a fun argument.
Civ. Pro.
The second case today, Waetzig v. Halliburton Energy Services, is one I wouldn’t recommend for the casual observer: Whether a voluntary dismissal without prejudice under Federal Rule of Civil Procedure 41 is a “final judgment, order, or proceeding” under Federal Rule of Civil Procedure 60(b).”
Wednesday, January 15
the one with porn – Free Speech Coalition v. Paxton
Just one case today, about Texas’s H.B. 1181, which requires age verification on websites that contain “sexual material harmful to minors” on more than one-third of their total content.
It is settled that the First Amendment protects adults’ right to access pornography as well as the ability to speak and access speech anonymously, as thoroughly discussed in the amicus brief by First Amendment Scholars. Laws that would restrict this right must withstand strict scrutiny – they are constitutional only if they serve a compelling governmental interest and are narrowly tailored to that interest. But it is also settled that the state may ban minors’ access to pornography. In this case, the Fifth Circuit applied a decision from the 1960s that upheld a New York law prohibiting the sale of pornographic magazines to minors, applying “rational basis” review instead of strict scrutiny. This is the narrow question on which the Court has accepted certiorari: “Whether the court of appeals erred as a matter of law in applying rational-basis review, instead of strict scrutiny, to a law burdening adults’ access to protected speech.”
I commend this explainer and the amicus brief from the Electronic Privacy Information Center. The organization often advocates for speech rights against governmental intrusion, but filed a brief in support of neither party in this case. It urges that mere rational basis review would allow for unwarranted regulation of online speech but also cautions the Court not to issue an opinion that would curtail appropriate age-verification laws, arguing that courts in each instance should be instructed to engage in “a highly statute- and fact-specific inquiry” to determine if First Amendment protected activity truly is being burdened.
This is the only case scheduled for argument today. As with a couple of cases noted above, the Solicitor General — still Prelogar; this will be her last time arguing as SG under Biden — will be participating as a third arguing counsel, so expect the arguments to run long.
The Court is closed on Monday, January 20 (MLK Day and Inauguration Day)
Tuesday, January 21
Although the first case today involves tobacco, FDA v. R.J. Reynolds Vapor Co. is not one I would recommend for the casual observer as it involves a narrow issue of civil procedure: “Whether a manufacturer may file a petition for review in a circuit (other than the U.S. Court of Appeals for the District of Columbia Circuit) where it neither resides nor has its principal place of business, if the petition is joined by a seller of the manufacturer’s products that is located within that circuit.”
Administrative state – McLaughlin Chiropractic Associates, Inc. v. McKesson Corp.
Today’s second case involves the uncertain status of administrative agency interpretation of federal statutes they administer, yet it has not received much attention. The plaintiffs won on their claims that McKesson sent advertisements by fax (in 2009-10) without consent or an opt-out notice, in violation of the Telephone Consumer Protection Act (TCPA). But they lost their bid to certify a class of others who had received such faxes, primarily because there was no way to determine if others had received faxes via an online fax service and the FCC had interpreted the TCPA to not extend to such faxes. The district court held, and the Ninth Circuit affirmed, that it was bound by that FCC determination. And the Hobbs Act requires that agency orders can only be challenged in actions brought in the Circuit Courts of Appeal. Thus the question presented in the Supreme Court: “Whether the Hobbs Act required the district court in this case to accept the Federal Communications Commission’s legal interpretation of the Telephone Consumer Protection Act.”
Again, the Solicitor General sought (under Prelogar) and has been granted leave to participate in the oral arguments (which will be conducted under Trump’s acting SG, presumably D. John Sauer or his deputy). So as above, expect the arguments to run a bit long.
I’m surprised this case has not garnered more attention, given the focus on the administrative state and the fact that it will be the new administration’s SG participating. For a nuanced and considered view of judicial review of administrative agency interpretations, see the amicus brief from Public Citizen.
Wednesday, January 22
Police shootings – Barnes v. Felix
As the RFK Center for Human Rights notes in a useful overview, this is “a case stemming from the tragic killing of Ashtian Barnes, a Black man who a deputy shot near Houston during a traffic stop for an unpaid toll fee associated with his rental car’s license plate.” Even the libertarian Cato Institute wrote in its brief, “Yet again, an unarmed Black American has been needlessly killed during a routine traffic stop.”
The Fifth Circuit opinion describes what happened. While Barnes was searching for the rental car agreement, the officer orders Barnes to open the trunk; at some point, the car begins to move and the officer fires “inside the vehicle with ‘no visibility’ as to where he was aiming.” The trial court found no explanation for Barnes turning his car back on and held “that Officer Felix’s actions prior to the moment of threat, including that Officer Felix ‘jumped onto the door sill,’ had ‘no bearing’ on the officer’s ultimate use of force.” In addition, the trial court held “that the moment of threat occurred in the two seconds before Barnes was shot. At that time, ‘[Officer] Felix was still hanging onto the moving vehicle and believed it would run him over,’ which could have made Officer Felix ‘reasonably believe his life was in imminent danger.'” The appellate court affirmed all this:
- we may only ask whether Officer Felix “was in danger ‘at the moment of the threat‘ that caused him to use deadly force against Barnes.” In this circuit, “it is well-established that the excessive-force inquiry is confined to whether the officers or other persons were in danger at the moment of the threat that resulted in the officers’ use of deadly force.” This “moment of threat” test means that “the focus of the inquiry should be on the act that led the officer to discharge his weapon.” “Any of the officers’ actions leading up to the shooting are not relevant for the purposes of an excessive force inquiry in this Circuit.”
This is the key issue, and the official question presented in the Court: “Whether courts should apply the ‘moment of the threat’ doctrine when evaluating an excessive force claim under the Fourth Amendment.” The Cato Institute brief makes a compelling argument that “[t]he moment of threat test has again prevented courts from undertaking a historically faithful inquiry into whether the encounter had to be fatal. The moment of threat test should be discarded because it contradicts longstanding common law rules for assessing the reasonableness of a seizure.”
I’m not aware of much public attention on this case yet, but I suspect that will change in the days before the argument and it has already received considerable attention from advocacy groups, with some 34 amici briefs filed. It will be an important and interesting case to attend, but expect long lines from quite early.
ERISA
The final January argument is an ERISA case — a notoriously complex area of law — and not one I would recommend to the casual observer. Cunningham v. Cornell Univ.: “Whether a plaintiff can state a claim by alleging that a [retirement] plan fiduciary engaged in a transaction constituting a furnishing of goods, services, or facilities between the plan and a party in interest, as proscribed by 29 U.S.C. § 1106(a)(1)(C), or whether a plaintiff must plead and prove additional elements and facts not contained in the provision’s text.”