The Texas social media law “infringes the core First Amendment rights” of NetChoice and Computer & Communications Industry Association (CCIA) members “by denying them editorial control over their own websites, while forcing them to publish speech they do not wish to disseminate,” the internet industry groups said in a Thursday petition for writ of certiorari at the Supreme Court. The groups said in September they would seek review of the 5th U.S. Circuit Court of Appeals decision to uphold the Texas social media law HB-20 (see 2209290047). They also seek SCOTUS review of a similar Florida law (see 2210240066). SCOTUS is expected to hear the Texas case because the 5th Circuit decision created a circuit split with an earlier 11th Circuit decision partly striking down Florida law (see 2209190080). “If allowed to stand, the Fifth Circuit’s opinion will upend settled First Amendment jurisprudence and threaten to transform speech on the Internet as we know it today,” said the internet groups’ petition. CCIA President Matt Schruers said the case, “involving a key Constitutional issue and split appellate court decisions, calls for Supreme Court oversight.”
The Supreme Court invited the solicitor general to file a brief expressing the views of the U.S. in ML Genius v. Google, said an entry Monday in docket 22-121. The case involves Genius, an online platform for transcribing and annotating song lyrics, and its requirement that visitors agree to its contractual terms as a condition for using its services. These terms include the promise not to reproduce the contents of Genius’ platform, said the company’s Aug. 5 petition for cert. “Google contractually bound itself to those terms, but, in blatant breach of that contract, Google stole Genius’s labors for its own competing commercial purposes,” said the petition. The 2nd Circuit U.S. Court of Appeals said in a March 31 judgment the Copyright Act preempts Genius’ breach-of-contract claim, under a provision that applies only to claims equivalent to exclusive rights within the general scope of copyright, said the petition: “At least five circuits disagree with this ruling and only one other circuit agrees.” The question presented is, "Does the Copyright Act’s preemption clause allow a business to invoke traditional state-law contract remedies to enforce a promise not to copy and use its content?"
The question of whether Israeli spyware company NSO should receive conduct-based immunity is irrelevant to whether the U.S. Supreme Court should grant certiorari in NSO’s appeal of a 9th Circuit U.S. Court of Appeals decision blocking the company from allegedly accessing the encrypted messages of WhatsApp users, said NSO in a supplementary brief filed in NSO Group Technologies v. WhatsApp (docket 21-1338) Friday. NSO was responding to a DOJ filing (see 2211250017) that urged SCOTUS not to grant cert, but that what NSO said stopped short of endorsing the lower court’s ruling. “The question presented is not whether NSO’s conduct-based immunity defense should ultimately succeed,” said NSO’s filing. “The question is what law governs NSO’s defense -- the FSIA [Foreign Sovereign Immunities Act] or the common law." That question ”is worthy of review even if NSO’s defense ultimately fails.” Even so, “NSO’s circumstances do not support the government’s conclusion that it cannot receive common-law immunity,” the filing said. "Conduct based immunity does not depend on an ad-hoc, standardless assessment of whether the State Department chooses to support a particular defendant,” said NSO.
Dish Network designated entity Northstar Wireless asked the Supreme Court for another extension of the deadline for filing its petition for writ of certiorari in a challenge to an appellate court's upholding of the FCC's denial of AWS-3 auction bidding credits. In an application Monday, Northstar counsel Paul Clement of Clement & Murphy requested the 30 additional days because he has been familiarizing himself with the case and also has "substantial briefing and argument obligations" in other cases leading up to the current Dec. 16 deadline. An extension was previously granted Clement in November (see 2211080018).
A 1st Circuit U.S. Court of Appeals decision that the Cable Act doesn't preempt Maine's cable TV charges prorating law (see 2201040072) doesn't warrant Supreme Court review because there's no meaningful split of authority on the issue, the state said Friday in opposition to Charter Communications' cert petition (docket 21-1539). The 1st Circuit is the first federal appellate court to look at the issue, Maine said. The 1st Circuit decision "is well-supported," since Maine's pro-rata law doesn't regulate rates but merely directs cable companies to refund a portion of the cancellation month regardless of whatever rate they set, it said. In its cert petition filed earlier this year, Charter said requiring pro-rata rebates to canceling subscribers "squarely conflict[s]" with the Cable Act’s prohibition on state and local rate regulation, and SCOTUS should resolve the split among federal and state courts about whether the Act preempts such laws. SCOTUS also should take advantage of the opportunity to tackle "a related (and even deeper) circuit split over whether a presumption against preemption applies to statutes -- like the Cable Act -- that expressly preempt state and local legislation," the cable company said.
Plaintiff-appellants oppose the motion by defendant-appellee Porch.com for the 9th Circuit U.S. Court of Appeals to stay the mandate, pending Supreme Court review, of its decision on violations of the Telephone Consumer Protection Act that blurs the lines between residential and business phone numbers in such cases (see 2210130080). There’s no “reasonable probability that cert will be granted” by the high court in the case, said their opposition Monday (docket 20-35962). There's no Circuit split and no constitutional issue at play in the decision, they said. “Thus, there cannot be cert on that basis. Nor is there any other issue of great significance that would lead the Supreme Court to take the issue.” The case has been on appeal for more than two years, they said: “Appellants are entitled to their day in court. And the public is entitled to know that these types of calls will stop.”
The 5th U.S. Circuit Court of Appeals should deny a late-filed motion to intervene in Netchoice v. Paxton, said Netchoice in an opposition filing Monday. The motion was filed earlier this month by pro se intervenor Leonid Goldstein, who argues that Texas Attorney General Ken Paxton’s case doesn’t represent Goldstein and that the court should issue its mandate upholding Texas’s social media law. The mandate has been stayed pending Netchoice petitioning the U.S. Supreme Court for a writ of certiorari in the case, but Goldstein said the mandate should be issued urgently to prevent social media platforms from suppressing “life saving medical information, including effective treatments for COVID-19. Most such treatments are based on ivermectin and hydroxychloroquine.” The motion also says the platforms are state actors that suppress speech and that Netchoice didn’t have standing to bring the case. Intervenor filings on appeals are commonly held to a high standard that Goldstein hasn’t met, Netchoice said Monday. Goldstein isn’t a proper party to the litigation, raises “meritless” arguments, and could have sought to intervene earlier in the case and didn’t do so, Netchoice said. Goldstein’s motion “does not provide any reason -- let alone an ‘imperative’ one -- to intervene and disrupt the status quo while orderly appellate review of HB20’s constitutionality continues at the U.S. Supreme Court,” said Netchoice.
Monday’s Supreme Court denial of Arizona GOP Chair Kelli Ward’s application for a stay and injunction blocking enforcement of the House Jan. 6 committee’s subpoena won’t necessarily mean the immediate release of Ward’s T-Mobile phone records to committee investigators. T-Mobile said in a Nov. 8 letter that if SCOTUS denied Ward’s application, it would then ask the 9th Circuit U.S. Court of Appeals to remand the case to the U.S. District Court for Arizona for the “limited purpose” of granting T-Mobile’s request for clarification of the subpoena’s scope. If remanded, the district court would “clarify that T-Mobile shall produce the records listed” in the subpoena, “whether patient or non-patient numbers,” said an order signed Nov. 4 by U.S. District Judge Diane Humetewa in Phoenix. Ward, a practicing physician, said she fought the subpoena on constitutional grounds but also to safeguard doctor-patient privilege.
Supreme Court Chief Justice John Roberts granted Dish Network designated entities Northstar Wireless and SNR Wireless until Dec. 16 to file a cert petition, per a notation Monday in SCOTUS docket 22A401. Northstar counsel Paul Clement of Clement & Murphy requested the extension to better familiarize himself with the case. Northstar and SNR are challenging the U.S. Court of Appeals for the D.C. Circuit's upholding the FCC's denial of AWS-3 auction bidding credits for the DEs (see 2206210065). "It is difficult to imagine a regime less consistent with due process or basic principles of administrative law," said Clement in the filing. "Yet the D.C. Circuit saw nothing wrong with the FCC’s behavior, or with the fact that Northstar is now on the hook for nine-figure penalties for failing to comply with amorphous standards that have survived scrutiny thus far only because the agency has always worked with applicants to cure any shortcomings between the applicants’ front-end guess of what the agency wants and the agency’s back-end, totality-of-the-circumstance determination."
When the Supreme Court takes up two related Communications Decency Act Section 230 cases this term, “the questions will be difficult and the stakes enormous,” said Miller Nash partner Robert Cumbow in an analysis Monday. Many over the past quarter century have credited Section 230 “with enabling the internet to grow and flourish,” said Cumbow. But others say that “reconsideration of the reach of Section 230 is long overdue,” he said. Legal experts told us earlier this month that SCOTUS will almost undoubtedly recast or cut back the broad immunity that interactive online platforms enjoy via the Section 230 liability shield (see 2210110030). Cumbow said that waiting in the wings is the pending 4th U.S. Circuit Court of Appeals case of Hepp v. Facebook, in which a misappropriated photograph of Philadelphia news anchor Karen Hepp found its way into numerous ads that appeared on Facebook and other online platforms, promoting such products as dating services and sexual performance enhancement. Plaintiff Hepp claims Facebook “is liable for violating her publicity rights because Section 230 expressly excludes intellectual property claims,” he said. Many states, including Hepp’s home state of Pennsylvania, “regard publicity rights as intellectual property, leading the Fourth Circuit to hold that Facebook is not shielded from Hepp’s claims” via Section 230, he said. Hepp and the two related social media cases all maintain that under the current interpretation of Section 230 they “will have no redress for wrongs committed against them and perpetuated by the companies that control web platforms,” said Cumbow.