Keeping up with the Court: 3/18/24

This week the big SCOTUS cases are about… SURPRISE: government entanglement with social media!!!

Does anyone else think that maybe 1) people need to start spending a little less time on social media, and 2) government needs to get out of the whole thing?

On Monday, the Court will hear Murthy v. Missouri and NRA v. Vullo, both of which consider when the government wink winks nudge nudges at a company a little too hard, such that a private companies’ actions are actually a result of government coercion. That is, the government can’t do things indirectly that it could not do otherwise outright. And so in this hyper-regulated world, the government can’t take advantage of its regulatory power to twist other people’s arms to violate the Constitution and evade constitutional restrictions.

There are those on left and right (Elizabeth Warrens and Ron DeSantises of the world, unite!) who think that tech companies have become so big that they have market power equivalent to government power, and are therefore subject to the same constitutional limitations as the government. A few weeks ago, the Court heard cases involving whether big companies should, for one reason or another, be subject to the First Amendment. Many libertarians resist that urge to blur the lines between public and private. But these two cases present one area where the Venn diagram may overlap: occasions where the government is actually forcing private companies to do its will. In those situations, the conduct should properly be considered state action rather than private conduct, and subject to constitutional restraints.

In Murthy v. Missouri, the government “communicated” to social media platforms about “public health” (i.e. COVID-19) and asked/nudged/directed (depends on who you ask) those companies to take down certain posts that it classified as “misinformation.” This is all so so so bad. The First Amendment prohibits the government from keeping a stranglehold on the free flow of information. The question is: when does the government cross that line by not censoring people itself, but instead asking others to do its bidding.

There’s also the perennial question of standing: that is, who can sue? Do individuals who have had their accounts suppressed have standing to challenge the government’s actions towards the social media platforms? It would seem to me, a mere constitutional lawyer, that if the government coerces a third party to harm another in a way that it could not harm that third party outright, the third party has standing to challenge the government’s conduct. But the government wants as narrow standing rules as possible, especially when it’s difficult for social media companies to sue themselves. And courts continue to surprise me in all the ways they will rule there’s no standing.

The government, for its part, insists that “so long as the government seeks to inform and persuade rather than to compel, its speech poses no First Amendment concerns.” The problem is that today’s behemoth administrative and incarceral state presents a zillion opportunities to constantly threaten by innuendo and pressure companies to comply. Even an eventually-dropped investigation poses significant time, money, and reputational harm, so companies feel pressure to do what the government says. The Fifth Circuit therefore applied a four-factor test to determine whether the government’s conduct crosses the line into coercion, but the government proposes a far looser test (as the government does), requiring compulsion by outright threats or inducements.

Cato joined Netchoice’s amicus brief arguing that when the government improperly coerces third parties into infringing First Amendment rights, those companies themselves suffer a First Amendment violation and redress must be directed towards the government, not the companies. The point is: don’t get it twisted. We might agree that a wrong has happened, but you should sue the government, not the companies, for its inappropriate coercion.

Later on Monday, the Court will hear NRA v. Vullo, which asks similar questions related to what happens when the government uses threats of sanctions and other intimidation tactics to get third parties to do its bidding. Here, the National Rifle Association contends that the Superintendent of the New York Department of Financial Services used thinly veiled threats to pressure banks and insurance companies to quit doing business with the NRA due to the latter’s viewpoint. The Second Circuit ruled that such coercion was acceptable. Now the Supreme Court has to figure out what qualifies as legitimate government speech or police power and what constitutes improper coercion.

Once again, Cato joined an amicus brief (this time written by the Goldwater Institute) arguing that whatever test the Court develops, it must accommodate the fact that the regulatory state is ripe for abuse and in fact, ideologically motivated coercion under the guise of regulation is on the rise.

On Tuesday, in Diaz v. US, the Court will first consider the ability of experts to testify that purportedly “blind mules” are not blind at all. For some background, blind mules are people who traffic drugs without knowing it. The defendant in the case, Diaz, was found crossing the border with 2 kilograms of meth hiding in her car. She testified that the vehicle belonged to her boyfriend and she had no idea about its contents. The government then called a Homeland Security agent as a witness to testify that couriers more often than not know exactly what they are doing, especially because traffickers don’t want to take the risk of putting all of their goods in the basket of someone who doesn’t even know. The jury found the “blind mule” guilty and she was sentenced to 7 years in jail.

She appealed, arguing that the Federal Rules of Evidence prevent witnesses from “stat[ing] an opinion” about whether someone had a mental state or condition relevant to a criminal charge. The Ninth Circuit rejected her argument on the basis that witnesses can express general opinions; they merely cannot express opinions about a particular defendant’s mental state (pedanticism always seems to weigh in favor of the government, doesn’t it?).

Later that same day, the Court will consider Truck Insurance v. Kaiser Gypsum, a bankruptcy case (the petitioner, Truck Insurance Exchange, is represented by Allyson Ho, whom we profiled here). The case asks whether an insurer for a bankruptcy claim is a “party in interest” such that it may object to a Chapter 11 bankruptcy plan of reorganization. Hey, the Court needs a respite from constitutional crises sometimes!

On Wednesday, in Gonzalez v. Trevino, the Court will consider a fascinating set of facts and arguments being made by our friends at the Institute for Justice about retalitatory arrest. In this case, a group of city officials colluded to arrest a 72 year old woman for trying to bring some harsh truth about the city’s roads. She organized a petition criticizing a city manager and accidentally placed it in her binder, subjecting her to arrest for “tampering with a government record.” She argues that the arrest was retaliatory. Under the Nieves Standard for retaliatory arrest, plaintiffs must first demonstrate there was no probable cause to make the arrest. If they can’t do so, they must present evidence that they were arrested even when other people doing the same things were not. The question presented is whether parties can introduce evidence other than that objective evidence to show that the arrest was retaliatory.

Last, the Court will hear Texas v. New Mexico and Colorado, involving the proper disposition of the Rio Grande River.

It's a big week full of interesting cases (but isn't it always?). I’ll be back later this week with a full recap.

Recapped: The Ides of March

Today was a rare Friday opinion day. The justices released decisions in three cases that were argued in October, and there were also a handful of interesting orders throughout the week.

Pulsifer v. United States

The Court announced the opinion in Pulsifer v. United States, which was argued on the first day of the term. 

The case concerned the First Step Act’s “safety valve” provision, which allows a judge to deviate from a mandatory minimum sentence and instead issue an individualized sentence. Individualized sentencing often leads to a shorter prison sentence. The defendant in this case pleaded (or are you Team Pled?) guilty to distributing at least 50 grams of methamphetamine, a federal crime subject to a 15-year minimum sentence. The dispute in this case was over the conditions a defendant must satisfy to be eligible for the safety valve.

With Justice Elena Kagan writing for the majority, the Court held that a defendant is eligible for the safety valve only if he—or she!—satisfies all three of the conditions enumerated in 18 U.S.C. §3553(f)(1). The conditions are that the defendant does not have (1) more than four criminal-history points, (2) a prior three-point offense, and (3) a prior two-point violent offense. The majority agreed with the federal government’s view that a defendant is not eligible for the safety valve if he meets any of the three conditions. Because Pulsifer had two prior three-point offenses and more than four criminal-history points (“three plus three equals six,” Justice Kagan helpfully spelled out for the mathematically challenged among us), he was ineligible for the safety valve. 

Stranger bedfellows alert! Justice Neil Gorsuch dissented, joined by Justices Sonia Sotomayor and Ketanji Brown Jackson, explaining that Congress changed the landscape when it passed the First Step Act and that the Court misread the statute’s “ordinary and most natural meaning.” In the dissenters’ view, a defendant must meet all three to be ineligible for the safety valve (because the statute says “A, B, and C” not “A, B, or C,” per Justice Gorsuch). The dissent closed: 

Today, the Court does not hedge its doubts in favor of liberty…  All to what end? To deny some individuals a chance—just a chance—at relief from mandatory minimums and a sentence that fits them and their circumstances. It is a chance Congress promised in the First Step Act, and it is a promise this Court should have honored. Respectfully, I dissent. 

Lindke v. Freed and O’Connor-Ratcliffe v. Garnier

The Court also announced its decisions in Lindke v. Freed and O’Connor-Ratcliffe v. Garnier, two cases involving public officials blocking their critics from accessing their social media accounts. Constituents (and critics!) sued California school board officials and Port Huron, Michigan’s city manager under 42 U.S.C. §1983 for violating their First Amendment rights. 

Did someone say "Port Huron"?

Check out Anastasia’s preview of the cases and recap of the oral arguments for more background.  

In Lindke, a unanimous opinion written by Justice Amy Coney Barrett, the Court held that a public official’s use of social media may be considered state action for purposes of §1983 only if the official “(1) possessed actual authority to speak on the State’s behalf on a particular matter, and (2) purported to exercise that authority when he spoke on social media.” Justice Barrett wrote, “The distinction between private conduct and state action turns on substance, not on labels[.]” It was not clear if Freed, the Port Huron city manager, acted in his private capacity (and thus exercised his own First Amendment rights) when he blocked Lindke from his social media page. Barrett concluded that public officials “too have the right to speak about public affairs in their personal capacities… Lest any official lose that right, it is crucial for the plaintiff to show that the official is purporting to exercise state authority in specific posts.” 

The Court issued a per curiam opinion in O’Connor-Ratcliffe, noting that the lower court applied a state action test based on the official “appearance and content” of the public officials’ social media pages. In both, the Supreme Court instructed the lower courts to reconsider the cases using the test spelled out in Lindke. 

Turning to orders from this week, the Court denied an application for an injunction in Spectrum v. Wendler. This case stems from the president of West Texas A&M University canceling a drag show a student group planned to hold on campus. The student group sued, arguing that the public university violated their First Amendment rights by banning their expressive conduct on campus. The district court denied a preliminary injunction. The case is on appeal at the U.S. Court of Appeals for the Fifth Circuit, but that court denied temporary injunctive relief. The students filed an emergency application for an injunction with the Supreme Court while the case is pending in the Fifth Circuit. Justice Samuel Alito, who is the circuit justice for the Fifth Circuit (which means he decides stay applications that come from that court), denied the application. 

Earlier this week, the Court extended its stay of a Texas law that would allow state police to arrest individuals who cross the border illegally. A district court in the Western District of Texas halted the law from going into effect while a constitutional challenge brought by the federal government and advocacy groups is pending, but the Fifth Circuit stayed that ruling. The federal government then asked the Supreme Court for an emergency stay of the law, which Justice Alito granted on March 4 and extended until March 18. The Fifth Circuit has expedited its review and will hear oral arguments on the merits of the challenge on April 3. Stay tuned…

Wrapping things up, the SCOTUS highlight of the week for me was Justices Barrett and Sotomayor continuing their unity tour. Speaking at a Civic Learning Week National Forum at George Washington University, they underscored the importance of disagreeing agreeably and assuming good faith of those you may disagree with. At another event with both justices in February, Justice Barrett remarked, “We don’t sit on opposite sides of an aisle… We all wear the same color black robe.” 

Check back Monday for our preview of next week's oral arguments.

It's a low bar.

SCOTUS Gentleman Q&A: Kannon Shanmugam

For our inaugural interview with a SCOTUS gentleman, we thought there was no one better to interview than the advocate who, according to one study, had the highest rate of successful petitions over a five year period of any Supreme Court practitioner.

Chair of Paul Weiss's Supreme Court and Appellate Litigation Practice, Kannon Shanmugam has argued nearly 40 cases before SCOTUS and over 100 appeals in lower courts, including arguments in every federal court of appeals. He's a former clerk to Justice Antonin Scalia, fan of double spaces after periods (but how does he feel about the oxford comma?), a jayhawks fan (umm, how does he find time for sports?), and a defender of the separation of powers. Without further ado: Kannon Shanmugam.

SCOTUS Ladies: What drew you to a career in law?

Kannon Shanmugam: If I’m being honest, it was probably LA Law.  Growing up, I wanted to be Harry Hamlin and had a crush on Susan Dey.  But in college, I was torn between law and journalism; I was editor of my college paper and worked summers for my hometown paper, the Kansas City Star.  In a rare moment of foresight, I realized journalism was going to be a tough way to make a living, and chose law instead.

SCOTUS Ladies: We see you majored in Classics. How has your Classics background helped in your legal career?

Kannon Shanmugam: A classical education is great training for a career in the law—you learn how to analyze text closely and how to think about language and history.  I’m also quite sure that Justice Scalia hired me as a law clerk simply because he liked the idea of having a classics major in chambers.

SCOTUS Ladies: If you were a character in a Greek myth, who would you be? 

Kannon Shanmugam: Achilles, but without the heel.

SCOTUS Ladies: The subject matter of the cases you’ve argued run the gamut. Are there specific legal doctrines that you are particularly passionate about or find especially interesting?

Kannon Shanmugam: This is a bit of a copout, but one of the things I love most about being an appellate litigator is the sheer breadth of the subject matter of the cases I handle.  In the next few months alone, I’ll be arguing cases on arbitration, Indian law, antitrust, copyright, and the tax treatment of the proceeds of life-insurance policies held by closely held corporations on their owners (I’m particularly excited about that last one).  I have particularly strong views about the rule of the last antecedent, but I don’t want to scare your readers.

SCOTUS Ladies: How do you prepare for an argument? Any rituals, superstitions?

Kannon Shanmugam: I think my preparation is pretty much the same as for other advocates—I typically do two moot courts for most arguments, and I spend a lot of time thinking about the questions I’m most likely to get (and the best answers).  I wish I had some sort of cool superstition, but I really don’t.  Before my Supreme Court arguments, I do get my shoes shined at the shoeshine stand at Union Station—a ritual that goes back to my days as an intern working for Senator Dole.

SCOTUS Ladies: What’s something you’ve learned that you wish you knew earlier in your career?

Kannon Shanmugam: Treat everyone you encounter the same way—with kindness and respect.

SCOTUS Ladies: What’s your happiest memory of clerking for Justice Scalia?

Kannon Shanmugam: Probably the time I persuaded him that “fraudster” was an actual word (and convinced him to use it in an opinion, for the first time in the history of the Supreme Court).

SCOTUS Ladies: So much has been written about the justice. What’s something about him that would surprise people?

Kannon Shanmugam: Given how brilliant Justice Scalia was, one might think it all came effortlessly to him.  But he worked so hard on his writing, and he was so meticulous about it.  My abiding memory of the Justice is seeing him in his office, hunched over his keyboard, cigarette in hand, working on a draft opinion.

SCOTUS Ladies: You’ve argued over 100 cases, including dozens at the Supreme Court. What’s your proudest moment as an advocate?

Kannon Shanmugam: I’ve been fortunate to argue some big cases over the years—Seila Law v. CFPB and Maryland v. King come immediately to mind.  But my proudest moment was probably arguing three very complex cases in a single week in the Second Circuit a couple of years ago.  That was more challenging than any single Supreme Court argument.

SCOTUS Ladies: You've accomplished things many lawyers only dream of. What career milestones do you next want to achieve?

Kannon Shanmugam: I’ve never really thought about career milestones—I don’t even keep track of how many Supreme Court cases I’ve argued (I leave that to our marketing team).  My only goal is for my next argument to be the best argument I’ve ever done.

SCOTUS Ladies: You are an excellent advocate. Defend your most absurd belief in three sentences.

Kannon Shanmugam: The typographers are right that writers should usually put only one space between sentences.  But I think legal writing is better with two, because otherwise it can be hard to read with in-text citations.  (And putting all the citations in footnotes is beyond the pale, particularly in the age of reading on screens.)

SCOTUS Ladies: Tell us about your new podcast (and how do you find the time?!).

Kannon Shanmugam: The podcast is called Court Briefs; as the name suggests, our goal is to provide brief, timely analysis of Supreme Court decisions of particular interest to the business community.  We were originally going to make this available only to our clients, but we decided to open it up to everyone, so please subscribe!  And the biggest key to success in this profession is being a bit ruthless when it comes to time management.

(Check out the podcast here!)

Which legal luminary should we interview next? Send us your suggestions!