The U.S. Supreme Court distributed for the justices’ May 30 conference the cert petition of three former Twitter users who are seeking review of the 6th U.S. Circuit Appeals Court’s judgment affirming that they lacked Article III standing to bring First Amendment social media censorship claims against the Department of Health and Human Services (see 2403270011), said a text-only docket entry Tuesday (docket 23-1062). The Twitter accounts of petitioners Mark Changizi, Michael Senger and Daniel Kotzin were terminated or suspended by the platform for publishing COVID-19 tweets that were deemed to have run counter to HHS’ pandemic public information policy. They allege the same First Amendment government censorship claims as the five individual plaintiffs in Murthy v. Missouri (docket 23-411) who seek to affirm the 5th Circuit's social media censorship injunction against officials from the White House and four federal agencies.
The U.S. Appeals Court for the D.C. Circuit granted Meta's unopposed motion to hold its appeal against the FTC in abeyance until 21 days after the U.S. Supreme Court issues its decision in SEC v. Jarkesy, said a clerk's order Tuesday (docket 24-5054). The underlying Meta-FTC case in the district court similarly has been stayed (see 2404180029). The D.C. Circuit appeal arises from the district court’s denial of Meta’s motion for a preliminary injunction to block the FTC’s administrative proceeding into its privacy practices. In the same decision, the district court also denied the FTC’s motion to dismiss. The district court denied that motion without prejudice, concluding that it would be premature to dismiss Meta’s claims before SCOTUS has issued its decision in Jarkesy, as it’s possible that the SCOTUS decision may have some bearing on the Meta-FTC case. Though Jarkesy involves a different agency, it concerns many of the same constitutional challenges asserted by Meta against the FTC, said Meta's motion Monday. The D.C. Circuit should similarly stay the appeal pending the Supreme Court’s Jarkesy decision, it said. Holding the appeal in abeyance temporarily will accomplish the goal of judicial efficiency in at least two ways, it said. First, granting the stay will allow the parties to brief the appeal with the benefit of the Supreme Court’s ruling, it said. Second, within weeks of the Jarkesy decision, the parties must determine next steps in the district court action, including whether the FTC will renew its motion to dismiss, it said. A second motion to dismiss “has the potential to give rise to a second appeal raising similar questions concerning the state of the law and how it applies to Meta’s claims,” it said. It thus may provide an opportunity for the parties to discuss “whether the instant appeal should continue to be held in abeyance pending resolution of that motion,” it said. An abeyance to give the parties time to determine the best course forward “will therefore accomplish judicial efficiency,” it said. Meta alleges that the FTC is structured so that in “administrative adjudications,” including the proceeding against Meta, the agency “has a dual role as prosecutor and judge,” in violation of the due process clause. It also alleges that FTC commissioners exercise executive authority while being “unconstitutionally insulated from removal” by the president. The questions at stake in Jarkesy (docket 22-859) include whether the statutory provisions that empower the SEC to initiate and adjudicate administrative enforcement proceedings violate the Seventh Amendment. Also at stake is whether statutory provisions that authorize the SEC to choose to enforce the securities laws through an agency adjudication instead of filing a district court action violate the nondelegation doctrine. The case also asks whether Congress violated Article II by granting for-cause removal protection to administrative law judges in agencies whose heads enjoy for-cause removal protection.
U.S. District Judge Randolph Moss for the District of Columbia adopted the joint request of Meta and the FTC to stay Meta’s constitutional challenge of the commission’s administrative enforcement proceeding against the company for alleged privacy violations, said the judge’s text-only docket entry Wednesday (docket 1:23-cv-03562). Meta and the FTC sought the stay, pending a U.S. Supreme Court decision in SEC v. Jarkesy (docket 22-859), said their joint meet and confer statement Monday (see 2404160033). Meta alleges that the FTC is structured so that in “administrative adjudications,” including the proceeding against Meta, the agency “has a dual role as prosecutor and judge,” in violation of the due process clause. It also alleges that FTC commissioners exercise executive authority while being “unconstitutionally insulated from removal” by the president. The questions at stake in Jarkesy include whether the statutory provisions that empower the SEC to initiate and adjudicate administrative enforcement proceedings violate the Seventh Amendment. Also at stake is whether statutory provisions that authorize the SEC to choose to enforce the securities laws through an agency adjudication instead of filing a district court action violate the nondelegation doctrine. The case also asks whether Congress violated Article II by granting for-cause removal protection to administrative law judges in agencies whose heads enjoy for-cause removal protection.
The parties in Meta’s constitutional challenge of the FTC’s administrative enforcement proceeding against the company for alleged privacy violations want the U.S. District Court for the District of Columbia to stay the action, pending a U.S. Supreme Court decision in SEC v. Jarkesy (docket 22-859), said their joint meet and confer statement Monday (docket 1:23-cv-03562). The parties propose submitting a further joint meet and confer statement within 14 days of the SCOTUS ruling, it said. At stake in Jarkesy is whether the statutory provisions that empower the SEC to initiate and adjudicate administrative enforcement proceedings seeking civil penalties violate the Seventh Amendment. Also at stake is whether statutory provisions that authorize the SEC to choose to enforce the securities laws through an agency adjudication instead of filing a district court action violate the nondelegation doctrine. The case also asks whether Congress violated Article II by granting for-cause removal protection to administrative law judges in agencies whose heads enjoy for-cause removal protection. Jarkesy was argued Nov. 29. Meta’s complaint challenges the constitutionality of the FTC’s “five structural characteristics” that render its actions against Meta “unconstitutional” (see 2311300039). Meta alleges that the FTC is structured so that in “administrative adjudications,” including the proceeding against Meta, the agency “has a dual role as prosecutor and judge,” in violation of the due process clause. It also alleges that FTC commissioners also exercise executive authority while being “unconstitutionally insulated from removal” by the president. Congress has delegated to the FTC power to assign disputes to administrative adjudication rather than litigating them before an Article III court, in violation of Article I of the Constitution, alleges Meta.
When the parties’ arbitration agreement delegates all issues in a lawsuit to arbitration, a court should dismiss the suit and compel arbitration, said the New England Legal Foundation in a U.S. Supreme Court amicus brief Monday (docket 22-1218). The brief supports respondent IntelliQuick Delivery CEO Keith Spizzirri’s bid to uphold the 9th U.S. Circuit Appeals Court decision affirming the district court’s dismissal of the case brought by petitioners Wendy Smith, Michelle Martinez and Kenneth Turner after the court compelled their claims to arbitration (see 2403280019). The petitioners are current and former IntelliQuick drivers who sued in Arizona for multiple violations of federal and state employment laws. Notwithstanding the petitioners’ “affirmative stay request,” the district court compelled their claims to arbitration and dismissed the case, and the 9th Circuit affirmed. The case is being watched closely to determine whether the Federal Arbitration Act's Section 3 requires district courts to stay a lawsuit pending arbitration, or whether they have discretion to dismiss when all claims are subject to arbitration (see 2403010007). Section 3 applies “only when an arbitration agreement is partial in scope and, therefore, “bifurcates the issues” between arbitration and a trial of the action in court, said the foundation’s amicus brief. In particular, when the agreement refers some issues to arbitration but leaves other issues in court, and a party files an application for a stay, Section 3 provides that the court shall stay the trial of the action until such arbitration has been held, it said. That language “clearly indicates that a court will adjudicate the merits of the parties’ nonarbitrable claims after the parties have resolved their arbitrable claims,” it said. Section 3 “ensures the orderly resolution of arbitrable and nonarbitrable claims in a bifurcated suit,” it said. But when the parties “have referred all issues in a lawsuit to arbitration, as in this case, Section 3 does not apply,” it said. In such a case, no issues remain in court for a trial of the action, it said: “To conclude otherwise would render this key statutory language superfluous.” Section 3 doesn’t apply when the whole suit belongs in arbitration, so the FAA “leaves undisturbed a federal court’s power to dismiss the suit and compel arbitration,” it said. Dismissal is appropriate because the court “has declined to exercise its jurisdiction to decide the underlying arbitrable controversy, in order to enforce the parties’ arbitration agreement and the FAA’s mandate,” the brief said.
Louisiana heads to the U.S. Supreme Court “to defend our First Amendment rights against government censorship,” said a media alert Wednesday from the office of Louisiana Attorney General Liz Murrill (R), trumpeting oral argument Monday in Murthy v. Missouri (docket 23-411) (see 2401290058). Louisiana and Missouri are the two state respondents challenging the government’s petition to vacate the injunction that would block officials from the White House and four federal agencies from coercing social media platforms to moderate their content. The Supreme Court has stayed the injunction pending its resolution of the case (see 2310230003). When George Orwell published Nineteen Eighty-Four in 1949 as a warning against tyranny, “he never intended it to be used as a how-to guide by the federal government,” said the Murrill media alert. Yet Murthy v. Missouri has uncovered more than 20,000 pages of documents “highlighting an extensive censorship campaign stemming directly” from President Joe Biden and his federal government, it said: “As a result, this has become one of the most important cases in a century related to the First Amendment.” The state respondents “will present a powerful argument” to the Supreme Court, “which we believe will validate the original ruling by a district judge that Biden’s censorship enterprise is a massive violation of the First Amendment,” it said. “We hope to get a strong, powerful message” from the Supreme Court that the First Amendment “still matters and that the federal government cannot engage in a broad ranging enterprise to stifle protected speech,” it said.
The U.S. Supreme Court denied the Feb. 15 motion of the five individual social media respondents in Murthy v. Missouri for 10 extra minutes of their own oral argument time and for the government when oral argument is held March 18 (see 2402160005), said a text-only docket entry Wednesday (docket 23-411). The government’s petition asks SCOTUS to vacate the injunction, temporarily stayed until resolution of the case, that bars federal officials from coercing the social media platforms to moderate their content. The individual respondents sought the 10 extra minutes “with an attorney familiar with the record and law in this case as it pertains to them.” An attorney for the respondent states Missouri and Louisiana shouldn’t be “tasked with diverting preparation or argument time to address facts and law” regarding the individual respondents, said their unsuccessful motion.
The U.S. Supreme Court denied the Dec. 26 cert petition (docket 23-698) of the city of Pasadena, Texas, to reverse the 5th U.S. Circuit Appeals Court’s affirmation of the district court’s judgment in Crown Castle’s favor that Section 253 of the Telecommunications Act preempts the spacing and undergrounding requirements in the city’s design manual for the installation of small cells and support poles in its public rights of way (see 2312300001), said the court’s published order list Tuesday. The 5th Circuit ruled Aug. 4 that Pasadena’s design manual imposed burdensome requirements on Crown Castle’s small-node networks, and was part of the battle between telecommunications providers that are trying to expand 5G wireless services and municipalities that are resisting that expansion (see 2308070002). The 5th Circuit on Sept. 25 also denied the city’s petition for a rehearing or rehearing en banc of the Aug. 4 decision (see 2309260032). Crown Castle waived its right to file a response to Pasadena’s cert petition (see 2401040003).
The U.S. Supreme Court granted U.S. Solicitor General Elizabeth Prelogar’s Jan. 22 motion for leave to participate as an amicus in oral argument on behalf of NetChoice and the Computer & Communications Industry Association in their challenges to the Florida and Texas social media content moderation laws, said separate text-only docket entries Friday (dockets 22-277 and 22-555). NetChoice and CCIA agreed to cede 10 minutes of their argument time to Prelogar (see 2401230037). Oral argument in the tandem cases is set for Monday.
The five individual social media respondents in Murthy v. Missouri (docket 23-411) are seeking 10 extra minutes of their own oral argument time and for the government when oral argument is held March 18, said their motion Thursday. The suit asks the U.S. Supreme Court to affirm the injunction barring federal officials from coercing the platforms to moderate their content. Not all the five are citizens of the respondent states Missouri and Louisiana, said the motion. They have standing and injury arguments “unique from and that may not adequately be presented” to the court by the states, it said. They seek the 10 extra minutes “with an attorney familiar with the record and law in this case as it pertains to them.” An attorney for the respondent states shouldn’t be “tasked with diverting preparation or argument time to address facts and law” regarding the individual respondents, said the motion. No party will be prejudiced, and granting the relief sought will aid the court on an important matter, it said. As demonstrated by the 28 amicus briefs filed on behalf of the respondents, “this case is a matter of widespread public interest,” said the motion. The U.S. solicitor general takes no position on the motion, and Louisiana Attorney General Liz Murrill (R) doesn’t oppose, it said. The individual respondents believe Missouri AG Andrew Bailey (R) doesn’t oppose, but they haven’t received his position in writing, it said.