Argument Spotlight: 'Public Forums' and 1st Amendment | Debut SCOTUS Argument Win | Judicial Retirement Spotlight
Here's why major social media companies are watching today's arguments in Manhattan Community Access Corporation v. Halleck. Plus: the Institute for Justice's Wesley Hottot won his debut argument in the high court—the excessive fines case Timbs v. Indiana. Thanks for reading Supreme Court Brief!
February 25, 2019 at 07:00 AM
7 minute read
Today is another one-argument day at the Supreme Court. (Gray v. Wilkie was pulled from the docket because of a mootness issue.) But it's a significant case in the era of Twitter and Facebook. Below, we give you a quick rundown. And we chatted with the winning lawyer in last week's landmark decision on excessive fines and civil forfeiture. Tomorrow and Wednesday bring three more arguments before the court recesses until March 18. Thanks for reading, and contact us anytime at [email protected] and [email protected].
'Public Forums' and the First Amendment
Last week, Justice Clarence Thomas kicked over a First Amendment hornet's nestby suggesting the Supreme Court should reconsider New York Times v. Sullivan, the landmark 1964 decision that makes it difficult for public figures to win libel lawsuits against the media.
Today, the court hears a lower-profile First Amendment case titled Manhattan Community Access Corporation v. Halleck that could also address another Thomas pet peeve: the court's “public forum” doctrine, which he says has been unfairly stretched to impose First Amendment rules on privately owned forums—in this case, private operators of public access channels.
“Cable systems are not public property,” Thomas wrote in a 1996 partial dissent. “The public forum doctrine … has never been thought to extend beyond property generally understood to belong to the government.”
This may sound like a ho-hum quibble, but at a time when public figures are making major use of private social media platforms, it's a big deal. Last year's successful lawsuit challenging President Donald Trump's right to block individuals from his Twitter account turned on the public forum doctrine.
In the Manhattan, the Second Circuit concluded that a private-owned public access television channel qualifies as a public forum under the First Amendment.
The prospect that the ruling could have broad implications for the Internet attracted strong amicus attention:
>> The Knight Institute, which sued Trump for his tweet block, filed a brief warning that a decision finding that private platforms can't be public forums would encourage “government censorship” at a time when “government actors are increasingly harnessing the power of the Internet and social media to establish new expressive spaces.” Knight senior attorney Katherine Fallow was on the brief.
>> On the contrary, says the Chicago Access Corporation, which recruited veteran Erin Murphy of Kirkland & Ellis to write a brief stating that public access channels should not be “subject to the same strict constitutional standards that apply on public streets and in public parks.”
>> The Internet Association, whose members include Facebook, Twitter and LinkedIn, filed a brief on behalf of neither party, but asks the court to rule very narrowly and not peg the Manhattan access channel as a “state actor.” Private property should be deemed a public forum only in “extraordinary circumstances,” wrote Chad Golder of Munger, Tolles & Olson.
Arguing the case for the access channel will be Michael de Leeuw of Cozen O'Connor, while those who want the channel to be viewed as a public forum will be represented by Mayer Brown partner Paul Hughes.
Debut SCOTUS Argument Win for Wesley Hottot
When Wesley Hottot (above) stood before the justices for his debut Supreme Court argument, he had in his pocket a sobriety token, a good luck gesture from his client Tyson Timbs.
As the arguments got underway that November morning in the case Timbs v. Indiana, it became clear that token or no token, luck was running with Hottot, senior attorney at the Institute for Justice.
“It's hard to predict any sort of court decision, but I knew in my heart that we had persuaded at least six of them—one more than you need,” he said. “It's nice to have your Supreme Court debut be in a case where not a single person can articulate how you're going to lose. A good first time out.”
The justices' unanimous ruling last week—the biggest of the term so far—said the Eighth Amendment's excessive fines clause applies to the states. The case focused on police forfeiture of a Land Rover vehicle, but the ruling could have broader consequences on state agencies and fines.
The decision was a victory not just for first-timer Hottot and Timbs, but also for the Institute for Justice, which has labored long in the forfeiture fight. For much of the institute's history, Hottot said, “we've been looking for ways to invigorate property rights under the U.S. and state constitutions.” The Institute for Justice considers asset forfeiture “one of the greatest threats to property rights today,” Hottot said.
Hottot, a graduate of the University of Washington School of Law, joined the Institute for Justice in 2008. “I work for a nonprofit so I don't have to worry about how much to bill the client for preparation,” he said. “With our team, I was able to do about a dozen moots, some with outside organizations. Those were tremendously helpful in getting outside our heads.”
His most important advice for a new high court advocate is to keep in perspective that “this is just another case.” Put all the pageantry aside and “do the same thing you would do for any other case.”
The Institute for Justice represents a party in a second case that's awaiting a decision at the high court: Tennessee Wine & Spirits Retailers Association v. Blair.
Continuing the focus on forfeiture, Hottot is working now on a case involving the award of attorney fees under the Civil Forfeiture Act. “Getting to stand up in the Supreme Court and to talk to the people you spend your professional life learning about, it's just such a thrill. I feel like I've been bitten by a bug. My mission now is to get to do it again.”
>> More reading: Clarence Thomas Resumes a Quixotic Campaign, and Gets a Gorsuch Nod
Supreme Court Headlines: What We're Reading
>> Carmel Ebb (above, second from left), believed to be the first female to clerk for a federal appeals court judge, died in Maryland on Feb. 10 at age 94, leaving a legacy as a pioneering lawyer who overcame barriers that made a career in the law difficult for women. Ebb clerked for Judge Jerome Frank of the U.S. Court of Appeals for the Second Circuit. [NLJ]
>> “Those looking to reform the Supreme Court might want to look away from court packing and instead consider the seemingly mundane issue of judicial retirement—and how it has reshaped the court throughout its history. A new SCOTUS retirement plan might just be the best way to protect the court's independence from the hyperpartisanship of our times.” [Politico]
>> Is Clarence Thomas heading out or just getting started? Thomas's call for revisiting Times v. Sullivan “reignited a whispering campaign among progressives that the 70-year-old justice is preparing to retire. But those close to Thomas saw something entirely different.” [CNN]
>> A federal appeals case in the 11th Circuit is the latest to test the 2015 U.S. Supreme Court pregnancy-bias ruling Young v. UPS, our colleague Erin Mulvaney reports. ACLU lawyers are pressing the court to revive claims brought by an emergency medical technician. [NLJ]
>> “While the Establishment Clause's scope is a matter of dispute, most Supreme Court experts predict the challenge to the Peace Cross will fail, with the justices potentially setting a new precedent allowing greater government involvement in religious expression.” [Reuters]
>> A group of Texas attorneys teamed with Skadden, Arps, Slate, Meagher & Flom in a fight to block the execution of Bobby Moore, a 59-year-old man whose death-penalty case hinges on whether he is intellectually disabled and therefore cannot be executed. Lawyers from Norton Rose Fulbright provided pro bono representation, assisting Skadden litigation partner Cliff Sloan in clinching a major victory for Moore. [Texas Lawyer]
This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.
To view this content, please continue to their sites.
Not a Lexis Subscriber?
Subscribe Now
Not a Bloomberg Law Subscriber?
Subscribe Now
NOT FOR REPRINT
© 2024 ALM Global, LLC, All Rights Reserved. Request academic re-use from www.copyright.com. All other uses, submit a request to [email protected]. For more information visit Asset & Logo Licensing.
You Might Like
View AllCourt Overturns $185M Fee Award for Quinn Emanuel in ACA Litigation
The Supreme Court Leaker That Never Was | This Term's 1st Opinion | Attorney-Client Privilege
9 minute readWho's Arguing at the Lectern | Union-Busted Cement Trucks | Emergency Application Catch Up
9 minute readIs It Legal Advice or Business Advice? | What Chief Justice John Roberts Didn't Say
Trending Stories
Who Got The Work
Michael G. Bongiorno, Andrew Scott Dulberg and Elizabeth E. Driscoll from Wilmer Cutler Pickering Hale and Dorr have stepped in to represent Symbotic Inc., an A.I.-enabled technology platform that focuses on increasing supply chain efficiency, and other defendants in a pending shareholder derivative lawsuit. The case, filed Oct. 2 in Massachusetts District Court by the Brown Law Firm on behalf of Stephen Austen, accuses certain officers and directors of misleading investors in regard to Symbotic's potential for margin growth by failing to disclose that the company was not equipped to timely deploy its systems or manage expenses through project delays. The case, assigned to U.S. District Judge Nathaniel M. Gorton, is 1:24-cv-12522, Austen v. Cohen et al.
Who Got The Work
Edmund Polubinski and Marie Killmond of Davis Polk & Wardwell have entered appearances for data platform software development company MongoDB and other defendants in a pending shareholder derivative lawsuit. The action, filed Oct. 7 in New York Southern District Court by the Brown Law Firm, accuses the company's directors and/or officers of falsely expressing confidence in the company’s restructuring of its sales incentive plan and downplaying the severity of decreases in its upfront commitments. The case is 1:24-cv-07594, Roy v. Ittycheria et al.
Who Got The Work
Amy O. Bruchs and Kurt F. Ellison of Michael Best & Friedrich have entered appearances for Epic Systems Corp. in a pending employment discrimination lawsuit. The suit was filed Sept. 7 in Wisconsin Western District Court by Levine Eisberner LLC and Siri & Glimstad on behalf of a project manager who claims that he was wrongfully terminated after applying for a religious exemption to the defendant's COVID-19 vaccine mandate. The case, assigned to U.S. Magistrate Judge Anita Marie Boor, is 3:24-cv-00630, Secker, Nathan v. Epic Systems Corporation.
Who Got The Work
David X. Sullivan, Thomas J. Finn and Gregory A. Hall from McCarter & English have entered appearances for Sunrun Installation Services in a pending civil rights lawsuit. The complaint was filed Sept. 4 in Connecticut District Court by attorney Robert M. Berke on behalf of former employee George Edward Steins, who was arrested and charged with employing an unregistered home improvement salesperson. The complaint alleges that had Sunrun informed the Connecticut Department of Consumer Protection that the plaintiff's employment had ended in 2017 and that he no longer held Sunrun's home improvement contractor license, he would not have been hit with charges, which were dismissed in May 2024. The case, assigned to U.S. District Judge Jeffrey A. Meyer, is 3:24-cv-01423, Steins v. Sunrun, Inc. et al.
Who Got The Work
Greenberg Traurig shareholder Joshua L. Raskin has entered an appearance for boohoo.com UK Ltd. in a pending patent infringement lawsuit. The suit, filed Sept. 3 in Texas Eastern District Court by Rozier Hardt McDonough on behalf of Alto Dynamics, asserts five patents related to an online shopping platform. The case, assigned to U.S. District Judge Rodney Gilstrap, is 2:24-cv-00719, Alto Dynamics, LLC v. boohoo.com UK Limited.
Featured Firms
Law Offices of Gary Martin Hays & Associates, P.C.
(470) 294-1674
Law Offices of Mark E. Salomone
(857) 444-6468
Smith & Hassler
(713) 739-1250