Welcome to Supreme Court Brief. The justices are less than two weeks away from their first-ever telephonic oral arguments. Advocates during those May arguments undoubtedly are anxiously awaiting more guidance on the format. As we wait, we take a look at an all-star lineup of First Amendment scholars in a petition stemming from a Black Lives Matter protest. Plus, a rare confession from DOJ, and a FOIA suit over records stemming from Justice Brett Kavanaugh's White House tenure is settled with a fee award against the government.

Thanks for reading, and your feedback is welcome and appreciated. Contact us at [email protected] and [email protected] and follow us on Twitter at @MarciaCoyle and @Tonymauro. Stay safe, and be well.

First Amendment Advocates Join to Protect Right to Rally

The Supreme Court has numerous First Amendment cases on its docket this term, raising important free expression and religion clause issues. A new case involving the oft-neglected rights of assembly and petition may soon be added to the list.

In Mckesson v. Doe, an unidentified person threw a rock and injured an unnamed Baton Rouge, Louisiana police officer during a Black Lives Matter protest in 2016. The officer sought damages from DeRay Mckesson, a leader of the protest but not the person who injured the officer.

A powerhouse lineup of First Amendment advocates and others filed an amicus brief supporting Mckesson in the case on April 9, urging the Supreme Court to abide by NAACP v. Claiborne Hardware Co., the 1982 decision that limited liability for the "unlawful conduct of others" in the context of protected First Amendment activity.

"The Mckesson case addresses the issue of whether the organizer of a lawful protest can be held personally liable for misconduct of one of the protestors," said Floyd Abrams, senior counsel at Cahill Gordon & Reindel. "If that were the case, the right to protest could far too easily and routinely be stifled."

Also on the brief are: Erwin Chemerinsky, dean of University of California, Berkeley, School of Law; Walter Dellinger, partner at O'Melveny & Myers; Geoffrey Stone, professor at the University of Chicago Law School; Nadine Strossen, professor emerita at New York Law School; and Kenneth White, partner at Brown White & Osborn.

Some excerpts from the brief:

>>> "The First Amendment does not condone physical violence … What is at stake here is not the officer's right to seek redress for his injuries but the First Amendment rights of organizers to use protest to express political and social views."

>>> "The story of the United States is a story of dissent. Born from an unwillingness to bow to arbitrary rule, our national ethos has consistently embraced the ability of individuals to change history through their voices."

>>> "Officer Doe is entitled to recover for his injury. But his remedy is owed by the rock thrower, not Mckesson. Mckesson did not throw the rock."

Students at the relatively new First Amendment Clinic at Duke Law School drafted the brief "from head to toe" with input from the signers as well, said Nicole Ligon, the clinic's supervising attorney. She is hoping that the Claiborne precedent will hold. "It protects a right that is vital to our society," she said. —Tony Mauro

At Supreme Court, a Rare Confession From DOJ

A rare confession of error by the U.S. Office of Solicitor General to the U.S. Supreme Court may give a pro se prisoner in an immigration case another chance to convince a federal appeals court not to approve his removal from the country.

The prisoner, Jamaican-born Andrew Brown, filed a petition for review in the Supreme Court claiming that the U.S. Court of Appeals for the Eleventh Circuit incorrectly dismissed his appeal as untimely. He argued that the federal Board of Immigration Appeals had mailed its final decision on his removal to the wrong prison address and that prevented him from meeting the appeal deadline.

In the Supreme Court, U.S. Solicitor General Noel Francisco told the justices that the Board of Immigration Appeals and the government agreed now that the board mailed its original decision to the wrong address.

Although confessions of error at the Supreme Court are uncommon, Brown's case was remarkable for another reason: Many records in his case are sealed or not otherwise easily accessible. The government's brief confessing error was not publicly accessible on the Supreme Court's online docket. —Marcia Coyle

Read more about Brown's case, and reaction, at NLJ.

Feds Pay $20K in Legal Fees in Suit for Kavanaugh Records

The Electronic Privacy Information Center said Monday that it had settled a Freedom of Information Act lawsuit against the National Archives for records relating to work on post 9/11 electronic surveillance by then-White House associate counsel and George W. Bush staff secretary Brett Kavanaugh. The government agreed to pay EPIC $20,001 for attorney fees, costs, and litigation expenses.

EPIC filed its FOIA lawsuit in September 2018, soon after Kavanaugh's Supreme Court nomination, seeking release of records about his work in the White House between Sept. 1, 2001 and May 31, 2006.

In its announcement of the settlement, EPIC said: "The records released to EPIC through the lawsuit revealed that Kavanaugh discussed warrantless wiretapping with program architect John Yoo. The records released to EPIC also show that, after the New York Times exposed the program, Kavanaugh exchanged hundreds of emails with White House and DOJ staff about the program, gathered legal justifications for the program, and drafted speeches defending warrantless wiretapping."

Kavanaugh was questioned by Sen. Patrick Leahy, D-Vermont., about his knowledge of the surveillance program during his 2006 Senate confirmation hearing on his nomination to the U.S. Court of Appeals for the D.C. Circuit and again during his Supreme Court nomination hearing.

The settlement was signed by EPIC general counsel Alan Butler and Stephen Pezzi of the U.S. Justice Department's federal program branch. —Marcia Coyle

Supreme Court Headlines: What We're Reading

Ahead of the Supreme Court's First Telephonic Arguments, Some Tips From the Trenches. "Another problem with attempting the court's traditional, freewheeling approach on the phone would be identifying which Justice is speaking. Veteran court observers may be able to guess a questioning Justice by voice, but first-time advocates and members of the public may not," Morrison & Foerster partner Joseph Palmore, co-chair of the firm's appellate and Supreme Court practice, writes. [NLJ]

The Supreme Court Should Never Go Back to Its Pre-coronavirus Ways. "The move to live-streamed oral arguments will, for the first time, offer all Americans real-time admission to the nation's highest court, sating the interest of longtime Court watchers while also attracting new audiences." [The Atlantic]

Justices Sharply Fracture Over When to Overturn Precedent. Justices offered competing views in the Louisiana jury case over when to overturn precedent. [NLJ]

Supreme Court Adds to Its Public Debate Over Precedent Ahead of Major Rulings. "Among the various opinions was a dispute about when the court should overturn precedent, an issue the justices have grappled with in recent years and could come into play this spring in a blockbuster abortion case out of Louisiana as well as in cases this term and next dealing with religious liberty." [CNN] Slate has more here.

A Dot-Com Army Is Volunteering for Booking.com. Salesforce.com, Wine.com and many others are backing the hotel reservation company in its U.S. Supreme Court showdown over trademark registration for generic top-level domains, our colleague Scott Graham reports. [NLJ]

Supreme Court Hands PTO More Power Over AIA Patent Validity Challenges. The U.S. Supreme Court on Monday gave the U.S. Patent and Trademark Office more latitude over administrative patent validity challenges under the America Invents Act, Scott Graham writes. A 7-2 majority held in Thryv v. Click-to-Call Technologies that USPTO has unreviewable authority to decide whether a party properly petitioned under the AIA within a year of being sued for patent infringement, or was in privity with a supplier, business partner or other party who had been sued. [NLJ]

Supreme Court Says Montana Landowners in Superfund Fight Must Consult With EPA. "The Supreme Court on Monday made it harder for some Montana landowners to pursue additional cleanup at a Superfund contamination site beyond what the Environmental Protection Agency has agreed to do. The court ruled 7 to 2 that the EPA takes the lead in coordinating environmental cleanup plans, and that the Montana landowners were not free under state law to take further actions on their own." [The Washington Post]

Georgia Water Victory at Supreme Court Would 'Spell Doom,' Florida Warns. "Florida is urging the U.S. Supreme Court to reject a judge's recommendation that the state's 7-year-old water rights case against Georgia be dismissed." [Atlanta Journal Constitution] Read the brief here from Latham & Watkins partner Gregory Garre.

SCOTUS to Review Former Georgia Police Officer's CFFA Conviction. The U.S. Supreme Court has agreed to settle a dispute over whether an authorized user of a computer system commits a criminal act by using it for an improper purpose. Stanford Law's Jeffrey Fisher is counsel of record, with Pamela Karlan and Brian Fletcher, for former Georgia police officer Nathan Van Buren. [Law.com]