NetChoice and the Computer & Communications Industry Association used separate reply briefs Thursday at the U.S. Supreme Court to press for the defeat of the Florida and Texas social media laws on First Amendment grounds. The Florida statute (SB-7072) “is a compendium of First Amendment problems,” said their Florida brief (docket 22-277). It requires a select handful of private actors “to disseminate third-party speech against their will and restricts their ability to decide how to organize and present that speech,” it said. “It draws distinctions based on content, speaker, and viewpoint,” it said. It does all this “because Florida dislikes how websites like Facebook and YouTube have exercised their editorial discretion and wants to amplify speakers and messages the state prefers,” it said. Florida “remarkably” insists that SB-7072 doesn’t regulate speech at all, it said: “That claim blinks reality and belies Florida’s own explanations for the law, which are replete with professed concerns about the messages that it perceived certain websites to convey through their editorial choices.” In their brief (docket 22-555) in opposition to the Texas law (HB-20), NetChoice and CCIA argued that Texas Attorney General Ken Paxton (R) has advanced a “revolutionary interpretation” of the First Amendment that would require SCOTUS “to overturn multiple lines of cases.” Under the Texas AG’s theory, governments “would have virtually unchecked authority to control and burden the editorial choices of private parties who publish and disseminate speech,” said the brief. But the Texas AG’s brief is “replete with arguments” that SCOTUS “has repeatedly rejected,” it said. The AG “comes nowhere close to carrying his heavy burden” of demonstrating that HB-20 satisfies strict, or even intermediate, First Amendment scrutiny, it said. To the contrary, his arguments flout the SCOTUS cases and “ignore the evidentiary record,” it said.
The U.S. Supreme Court granted Monday’s unopposed motion by the U.S. solicitor general for a one-month extension to April 3 to respond to the Consumers’ Research cert petition against the FCC (see 2402120035), said a text-only docket notice Tuesday (docket 23-743). This extension is necessary because the 5th U.S. Circuit Court of Appeals has granted rehearing en banc in a parallel case, Consumers’ Research v. FCC (docket 22-60008), said the motion. The 5th Circuit’s decision could affect the resolution of the cert petition in this case, said the motion.
A coalition of 21 Republican state attorneys general urged the U.S. Supreme Court to hear Consumers' Research's challenge of the FCC's quarterly USF contribution factor and methodology in an amicus brief posted Thursday (docket 23-743). "Agencies are finding all kinds of creative new ways to grab money and power for themselves lately," the coalition, led by West Virginia AG Patrick Morrisey (R), said. The FCC "extracts billions from American consumers based on a vague statute" and "doesn’t even do the work of setting these rates itself," they argued (see 2401100044). The AGs called the FCC's use of the Universal Service Administrative Co. unconstitutional and a violation of the nondelegation doctrine. "Those that would warn the Court away from reaching these issues are wrong," the group said: "The benefits of the present state of play are overstated." The FCC declined to comment Monday. The agency on Monday petitioned the court to extend until April 3 the March 4 deadline for responding to Consumers' Research's petition, citing a parallel case pending in the U.S. Court of Appeals for the 5th Circuit.
The U.S. Supreme Court distributed for the justices’ Feb. 23 conference a criminal defendant's cert petition seeking to reverse an Illinois Supreme Court finding that the state can compel him under the Fifth Amendment to produce his cellphone’s passcode for a police investigation (see 2401230003), said a docket entry Thursday (docket 23-5827). The petitioner, Keiron Sneed, was arrested on charges of forging two paychecks and depositing them in his bank account using his cellphone. The police obtained a warrant to seize the cellphone but were unable to execute it because the phone was password-protected and Sneed refused to unlock it. Sneed contends that compelling him to reveal his passcode would force him to assist in his own prosecution. Illinois maintains that SCOTUS lacks jurisdiction to hear Sneed’s case because the Illinois Supreme Court decision compelling him to unlock his cellphone was an interlocutory opinion from a state court.
The U.S. Supreme Court scheduled oral argument for March 18 in Murthy v. Missouri, the case in which the government is seeking to vacate the injunction that bars officials from the White House and four federal agencies from coercing social media companies to moderate their content, said a text-only docket entry Monday (docket 23-411). The Republican attorneys general of Missouri and Louisiana, plus five individual social media user plaintiffs, won the injunction in U.S. District Court for Western Louisiana in an unusual ruling issued on the July 4 holiday (see 2307050042). The 5th U.S. Circuit Court of Appeals affirmed the injunction Oct. 3 with significant modifications (see 2310040001). SCOTUS granted the government’s cert petition to hear the case Oct. 20 over Justice Samuel Alito's objections (see 2310230003). It also granted the government’s request for a full stay of the injunction, pending the court’s resolution of the case.
The U.S. Supreme Court should deny criminal defendant Keiron Sneed's cert petition to reverse the finding of the Illinois Supreme Court that Illinois can compel him under the Fifth Amendment to produce his cellphone’s passcode for a police investigation, said the state's opposition brief Monday (docket 23-5827). Sneed was arrested on charges of forging two paychecks and depositing them in his bank account using his cellphone (see 2311200026). The police obtained a warrant to seize the cellphone but were unable to execute it because the phone was password-protected and Sneed refused to unlock it. SCOTUS lacks jurisdiction to hear Sneed’s case because the Illinois Supreme Court decision compelling him to unlock his cellphone was an interlocutory opinion from a state court, said the opposition brief. Even if SCOTUS had jurisdiction, its review wouldn’t be warranted, it said. There’s no “division of authority” as to whether the Fifth Amendment’s “foregone conclusion doctrine” is applicable to the compelled entry of passcodes, it said. Any disagreement as to what facts must be foregone conclusions in that context “is nascent and undeveloped,” it said. The Illinois Supreme Court “correctly applied” SCOTUS Fifth Amendment precedents in this case, it said.
The U.S. Supreme Court denied cert to plaintiff-appellant Lucine Trim in her Telephone Consumer Protection Act dispute with Reward Zone, said the court’s order list Tuesday. Trim’s petition (docket 23-495) had sought to reverse the 9th Circuit’s affirmation of the district court’s dismissal of her complaint. She had argued that after the 2021 SCOTUS opinion in Facebook v. Duguid, a “plethora” of courts have attempted to interpret the definition of an automatic telephone dialing system (ATDS) under the TCPA in the context of Facebook’s holding (see 2311140002). She further argued that her petition gave SCOTUS the perfect opportunity to clean up the “mess” of varying ATDS interpretations that resulted after Facebook.
The U.S. Supreme Court distributed the Pasadena, Texas, Dec. 26 cert petition for the justices’ Feb. 16 conference, said a text-only docket notice Wednesday (docket 23-698). Pasadena seeks the reversal of the 5th U.S. Circuit Appeals Court 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).
Online services “have a well-established First Amendment right to host, curate and share content as they see fit,” emailed Chris Marchese, director of the NetChoice Litigation Center, in response to the U.S. Supreme Court scheduling Feb. 26 oral argument in the NetChoice and Computer & Communications Industry Association tandem First Amendment challenges to the Florida and Texas social media content moderation laws (see 2401050031). The internet “is a vital platform for free expression, and it must remain free from government censorship,” said Marchese Friday. NetChoice is "confident" that SCOTUS will agree, he said.
The U.S. Supreme Court set Feb. 26 oral argument in NetChoice's and the Computer & Communications Industry Association's tandem First Amendment challenges to the Florida and Texas social media content moderation laws, said text-only entries Friday in dockets 22-277 and 22-555. The Constitution’s free speech right “protects the editorial discretion of websites and digital services from government intervention,” said CCIA President Matt Schruers in a statement Friday. Content moderation isn’t only “an essential trust and safety function,” it’s also “a First Amendment-protected activity,” he said. “After years of litigation, CCIA looks forward to having our constitutional challenges heard in the Supreme Court.” NetChoice didn't immediately comment, nor did the Republican attorneys general of Florida and Texas.