Transcripts For CSPAN2 Attorneys 20240703

Legal foundation. The foundation for individual rights and expression. Id like to welcome you to this Years Supreme Court preview discussion and also welcome to our viewers on cspan. The courts term begins on monday of next week, although this morning we got the surprise of several grants and new cases at that theyre going to hear and its shaping up to be an exciting term. Theres a little bit of something for everyone. Free speech, guns, taxes, and of course, overreach by administrative agencies. We have a lot of ground to cover and only about an hour to do soso im going to jump right into brief introductions of our distinguished panel. John elwood is a partner at arnold and poller where he heads up to the Supreme Court cases. Hes argued 10 cases before the Supreme Court and appeared before nearly every federal Appeals Court in the country. And john writes, the popular relist watch for scotus blog. I hope youll bring back the relist carols this holiday season. And a National Writer on National Review online and National Review institute. A recovered litigator dans writing on politics, law and baseball has appeared in a variety of outlet. Dan is a long suffering mets fan, and perhaps during q a we can ask for your world series predictions and last but not least, an attorney and vicepresident of litigation for the foundation or individual rights and expressions. Before joining fire, she spent more than 10 years litigating cutting edge constitutional cases with the institute for justice. Such a lover of the constitution that she had her wedding reception at the National Constitution center. So with that, id like to start with you, the big news of the day is that the Supreme Court is going to hear two cases in its upcoming term, states regulating social media companies. Thats right, both of the cases the future is high on the future of internet freedom. These are, i would argue, the most important cases on the internet than two decades ago. These laws concern or the cases concern two laws, one in texas and one in florida that regulate the major social media platforms. So facebook, youtube, x, the platform formerly known as twitter, and both laws differ in some ways, but overall, they do two things. First, they restrict the ability of platforms to engage in what is known as content moderation, so thats basically the platforms ability to make editorial choices about removing, editing, arranging, or even prioritizing user generated content. And the second they think both of the laws do, noted requirement. For example, the laws require that every instance of content moderation must be addressed and explained on an individual basis. So individualized explanations for any instance of content moderation. Now, its not so much a surprise that the Supreme Court took up these cases. The United States had asked the court to take up both cases and resolve at least some of the questions presented and today, the Court Granted on those two questions, one, whether the content moderation restrictions violate the First Amendment, and two, whether the notice and Disclosure Requirements vee late the First Amendment. So, to go into the 11th circuit, okay, great. So, as i mentioned the florida case, the 11th circuit decided that, well, first the District Court enjoined the law saying it was likely going to violate the First Amendment because it discriminates on the content, the viewpoint and the speaker and the great line, the district of course, says its not narrowly tailored and then failed scrutiny because its an instance of burning down the house to roast a pig. And the 11th circuit found that that was largely right, that basically the First Amendment protects platforms moderation decisions, because a private entitys decision, thats the key here. These are private entities decisions about whether, to what extent and in what manner they disseminate Third Party Content to the public are editorial decisions that are protected by the First Amendment and theres longstanding Supreme Court precedent on this, going back to newspapers with the miami herald case that establishes that the right of publishers to exercise editorial judgment and deciding which to showcase on their own newspaper is protected by the First Amendment. Unfortunately, the 11th circuit reversed as to the laws Disclosure Requirements ruling that theyre purely factual disclosures that pass muster under the Supreme Courts test for compelled commercial disclosures and i think thats the key there, which is maybe get to later on why i disagree with that. The second case comes out of texas and the fifth circuit reached an opposite conclusion, basically the District Court enjoined the law, but that decision was stayed pending appeal to the fifth circuit and may be in a little bit of a hint that well see from the Supreme Court, the Supreme Court vacated that stay. Then the fifth circuit and a divided panel reversed and ruled that the content moderation is not speech, but conduct and thats essentially censorship thats not speech and therefore, not protected by the First Amendment. And that even if these moderation decisions are speech, the prohibition would satisfy with the intermediate scrutiny. It was a panel that the judge disagreed, but the fifth circuit did declare that the provisions were socially valid. Thats interesting to watch what happens with the Supreme Court. Any predictions . Well, im hopeful that the 11th circuit ruling will be uphell that these are, these regulations implicate the First Amendment rights of the social media platforms, theyre private entities and im hopeful that the Supreme Court will recognize were not talking commercial speech here. Theres no commercial transaction, when youre looking at the requirements and the disclosure provisions theyre applying the wrong test here. Think about it, if every time a social media platform decided to take down a message or take down a post, they had to provide an individualized explanation why they were doing it, im not so sure how much theyd be able to do. Lets turn to the United States versus, in the first case and theyll deal with the text amendment concerning the Second Amendment. Gun violence is no laughing matter, but i found this detail from the Lower Court Opinion kind of entertaining. One of the various incidents that led to mr. Rahinis indictment, involved him shooting fires into the air at whataburger when his friends credit card was denied. Ive got the tricornered hat. This is the fourth major Second Amendment case that the court has heard now in the past decade and a half. In heller, the court decided that there was an individual right protected by the Second Amendment and gave a little bit of a look at what kinds of guns or covered by that by saying that handguns for protection are covered. In mcdonald, the court said that the Second Amendment is, in fact, incorporated against the state, which is not an issue in rahini. Thats a federal law case which has an interesting consequence because one of the issues that Justice Barrett noted that wasnt quite hasnt been quite settled is when you look at the original meaning and intent of the Second Amendment, you look only at 1791 or do you look at the time of the adoption of the 14th amendment, but the 14th amendment, the 1860s, thats not relevant in rahini because its a federal law case. In the 2022 decision in bruin, the court then moved on to from keeping arms to bearing arms and it ruled that there was a right to carry arms in public. What we are now dealing with is the question of gun regulation. Once youve established all of those guardrails, when can the government decide that someone cannot carry a gun, keep or bear arms . In this case, it may be just as much a due process case as a gun case. 18usc922g8 basically says that it criminalizes having a gun if you are subject to an order of protection for Domestic Violence so long as that order was subject was made after notice and opportunity to be heard and that the court found either a credible threat presented by the defendant or issued a prohibition of the use of force. Now, in this case, the court may not reach that second and somewhat vaguer part b because the order, which applied to him for a twoyear period, was, in fact, supported by both findings. But the real kind of founding era issue, because of the fact that, you know, under bruin, what the courts are asked to do is to find not exactly an exact twin, but analog in some sort of gun regulation in a founding era. Whats controversial in rahimi, subject to the Domestic Violence order without a criminal process, clearly a criminal proceeding. And judge in concurrence in the 5th circuit warned that these are often done at a boiler plate level. Often no incentive for judges to deny orders of protection, sometimes in divorce cases they will routinely order a twoway restraining order against both parties even if theres not really anything in the way of evidence that one of them is a danger. Now, here, rahini is unusually sympathetic facts, guy two year order of protection for threatening his girlfriend, he threatened to shoot her, he shot at a witness, allegedly, and then was finally pulled in by the police after five separate shooting incidents in a fiveweek period. To the extent that there is, i think, a founding era analog, probably the closest thing the government is able to point to is surety laws under which ooh individual could be required to put up a surety if they were found to be a threat to some particular individual and that was a civil proceeding, but because of the fact that the founding era, normally you would be stripped of your right to bear arms only after a felony conviction, you know, its a little bit tricky, but its going to be interesting to see because i think probably it puts this is about as sympathetic as the court is going to get case for upholding these kind of laws and theres a whole bunch of them in the federal criminal code. Yeah, and one sort of interesting thing about comparing it to the surety laws, that didnt actually take away possession. You just had to put up a bond and then you could possess your firearms. Unless you couldnt put up the bond, then you lost. Any prediction how it might turn out in the court . I have a feeling that Justice Roberts and kavanaugh is going to be uncomfortable where the 5th circuit went. The question is who else goes with them. Yeah, Justice Kavanaugh had a concurrence joined in bruin, were not talking about longstanding, you know, bans on peoples mental illness, felons, bans on carrying to secure places, sensitive places so they might be the two to watch in particular. Lets turn next to, john, a trio of Administrative State cases and these are near and dear to my heart. So the court will hear a case involving the Consumer Financial Protection Bureaus unique funding mechanism. So, instead of going hat in hand to Congress Like every other executive agency and department, the cfpd gets to tell the fed how much money it wants and the fed has to turn it over. And the other challenges the Enforcement Actions for security fraud in its own own inhouse, what you might call inhouse kangaroo course instead of before an independent article three judge and then finally the big kahuna for the term from my perspective, asking the justices to overturn the wrong handed chevron document, requires judges to refer to agencies about the meaning of ambiguous texts and that would be the biggest, the federal government. Tell us about the trio. Its an exciting time because i think were on the cusp on a sea change of Administrative Law and we are in the midst on separation of powers document. On Administrative Law, when i graduated from law school in the last century, we will say, there were two fundamental principles of Administrative Law, first, chevron was fundamental law and was firmly established and secondly, nondelegation doctrine was useful only as a but for legal jokes and those may be switched in the next five years, one as early as next year. The separation of powers thing, its never really gone out of fashion, but in the old days, the court was much more sympathetic to the idea that congress could try to insulate an agency from political pressures. In the last few years theres a growing feeling that insulating from political pressure is another way of saying reducing accountability and so, the members of the court are at least skeptical and wanted to take a hard look at efforts to insulating from political pressures, actually to take some outside of the congressional design. Because a lot of political pressures are baked into the constitution. First, chevron, the third most cited case ever. And i know that some people will stop hearing me now because youre going to be thinking about what could be possibly cited more, its actually qualified immunity is one of them, but i couldnt tell you what the other one is. As elizabeth was intimated, you know, some people have some of the conservatives on the court have criticized chevron doctrine both for outsourcing construction and second will i putting a thumb on the scale when theyre supposed to be holding the balance true between both litigants. In recent years, the Supreme Court has basically avoided using it. Basically wringing every bit of interpretive guidance out of the session itself and by basically saying, chevron isnt applicable to certain instances because of the major questions doctrine you would think that congress wouldnt want to leave Big Decisions up to the agency. As a consequence, the last time the Supreme Court really has, you know, employed chevron, i believe, was 2016 so its been a while. Next term the Supreme Court will have a case before asking them explicitly to overrule chevron. And the case involved a challenge by companies to rule issued by the National Marine Fishery Service that requires fishermen for me, an untasty fish, the herring, to pay for the cost of federal observers who monitor compliance with fishery monitoring plans, this is not nothing, sometimes can be 20 of the catch. And relying on chevron, that was a reasonable interpretation of the statute. Even though well, the statute does say they can monitor to be present, thats not nothing. A couple other places in the statute they explicitly say that fishermen have to pay for that and they dont in the part of the statute that applies to herring fishermen. And so, theres already, theres kind after negative pregnant argument there, but they won in the d. C. Circuit which is not afraid to ally chevron unlike the Supreme Court, or not reluctant to asupply chevron. The fisheries asked two questions, whether this was the proper application, or chevron should be overruled, im going to read this. At least the courts should look at statutory powers does not constitute an ambiguity in reference to the agency. The court only granted on the second question, kind of made the case a blockbuster. Only interested in overruling chevron or limiting it. Most of the attention and the briefing has been focused on the big ticket question whether to overrule chevron rather than to limit it. Bright, by the solicitor general gives a full throated argument saying that chevron deference is historical, inconsistent with the administrative procedure act and has a pernicious effect system wide in that people no longer tried to sort out, no longer tried to compromise in congress because they figure half the time their party is going to be in power and they can get their way through the executive branch and its kind of broken the political system. And he argues that chevron isnt entitled because it is designed to not engender reliance because its supposed to make it so you can change the interpretation recently and this thing, you know, like i always think of the line from Yellow Submarine seas of green when i think about the amicus brief in cases like this because theres already 50 amicus briefs filed just on the top right side. And im sure there will be similar numbers on the other side. And it will be interesting to see whether they go for the big question. But there is this off ramp, whether they just decide to limit chevron further. And i think that there is a lot of reason to believe that they might do that. A few years ago, the court was asked to overrule our difference, which is basically applies the same principle, but to an agencys interpretation of its own regulation, instead of overruling it outright, they winnowed it down to virtually nothing, or winnowed it down substantially, and query whether the Supreme Court will have an appetite to overrule chevron when the kavanaughs and the roberts couldnt bite off over ruling difference. And that brings us to nondelegation doctrine, i would give a brief delegation preview, which was that it was more or less morebund. We got four justices who more or less said were interested in revisiting this in separate opinions in the gundy case and then Justice Kavanaugh joined the court and said in dissent in denial or concurring in denial that boy, that gorsuch opinion in gundy was great and we ought to consider this an appropriate case. That is present in fcc, which is a case out of the 5th circuit and involved an administrative prosecution or administrative proceedings against george for basically securities fraud. And he sought to challenge an administrative ruling that hes guilty of fraud in the 5th circuit and the 5th circuit involume dated the administrative finding on three grounds. So they wanted this thing killed. First of all, they got out ahead of the Supreme Court because the Supreme Court has merely flirting with reviving that delegation doctrine. But the administrative says that his prosecution was violated to nondelegation doctrine, Congress Allowed the fcc the choice to prosecute on administrative proceedings or the court. And they said that violated nondelegation doctrine and didnt give, oh, what is the phras what is the phrase that you have to say oh, yes, an intelligible principle. You have to provide an intelligible principle for how to choose between those two, and they didnt even meet that. Secondly, they concluded that it violated the 7th amendment right for jury trial to bring enforcement administratively when fraud was a familiar commonlaw concept and third, that it separated the powers to have Administrative Law judges in the scc subject to two levels of removal restrictions not only was alj subject to restriction on removability, but the chair to remove them would remove the restrictions and starts at two tiers of removal restrictions, violated the take care of the laws, the faithfully executed. Which the court said two tiers of removal restriction was unlawful in the county oversight ff board. For what its worth, unlike some of the other speakers, im more willing to venture predictions if you promise to forget them if im wrong. I think that nondelegation is a fairly weak argument the government makes a fairly strong case that legislatures in the past have given prosecution choices to agencies and hasnt been considered too bad although in the past its been criminal versus civil. And that thats really not a legislative determination, thats more of an executive choice. The 7th amendment argument, the government argues that in the past, when theyve kind of created a public rights, that the congress has allowed congress to condition them and place, now, basically allow them to be determined administratively to give the example of interpartys review that allows people to challenge administratively which the Supreme Court upheld in the Oil States Case a few terms ago, but there are other examples they give such as osha violations, irs administrative adjudication, fines for immigration laws and so on, so forth. So at least there are other examples and there is a kind of twofor both and also look at all the china youll break if you have to bring things into court. I think a lot of people think this is a relatively strong claim and a lot of people who haven about trying for a long time trying to take down the Administrative State and we think this is kind of the strongest claim. And then finally, i think that the thing, theres the most well trodden path for them to involume date and this, i think, is the claim most lookly to be successful is this two layers of administrative removals because the Supreme Court already said, you know, you cant do that and Free Enterprise fund the government gamely argues, oh, but these are, you know, this is administrative adjudications and its ajude catry, thats different than kind of enforcing the law like in Free Enterprise fund. They make a couple of arguments why this cant be and remains to be seen whether that will work. Its an interesting thing when you think about remedies. Because what is the remedy . I think the Supreme Court is unlookly to say that you have to make the sbc chair removal at will. So, you would presumptively make the judge removable at will. Thats one of the things that makes them look fair. If theyre removable and anytime they do anything that displeases the agency. How are you supposed to get a fair adjudication in front of the Administrative Agency . It will be interesting to see which one that way goes. And the last one, which elizabeth has already teased, is the Consumer Financial Protection Bureau for the Community Financial services administration. Association, sorry. The cfpb was created during the crisis and anytime they want to seem responsive theres no limit to what theyll do. Theyre much more willing to be adventuresome during those kind of occasions and that, they did a lot to try to seem like they were trying to insulate the agency from political pressures accountability, some of those have already been involume dated because the agency head was with some selfsubject to removal restrictions and that was involume dated in sela law case. As elizabeth said they dont have to go hat in hand to congress. They have a permanent appropriation that allows them to say the Federal Reserve board, wed like this much within very, very broad statutory limits and if they dont wind up spending that, put it in the bank and its year after year and its kind of their little slush fund. The fifth circuit involume dated that for basically being permanent. For being free from for many permanent, for being free from going to congress, its pulled from user fees from banks and the fact that it just has no accountability and that they have congress has limited review and things like that. The but i think that this is probably the first time that an agency has ever been, you know, basically more or less struck down or involume invalidated on appropriations clause grounds. And i think the government, there will be somewhat of an uphill road because there are there are precedents for many of these features from, including from the founding congresses. And the question is whether i joked that theres a principle out of state law, two rights make a wrong, things themselves are okay, but if you add them together to add extra removal, extra insulation from accountability at some point it becomes too much and might strike them down. Theres a possibility that that might happen, but theres definitely precedent because a lot of the Early Congress because we didnt have the income tax, was done, you know, through kind of, you know, user fees and things like that. Now, for customs, for, now, Patent Office, and a lot of that was also subject to permanent appropriations, including, i think, one thing that isnt much talked about in the brief. Thomas jefferson was head of a Patent Office at a time they had a permanent appropriation and they were funded through user fees. And i only know this, i wrap myself in the fact that it was consistent with jeffersons practice and the senate was about First Amendment, whether you had a First Amendment right to vote when you should be recused and they looked at jeffersons practice there. So, it will be interesting to see if thats the case here. And in addition, theres also the appropriations clause says that you cant have appropriation for more than two years for the army and you can have multiappropriations for everybody else. So it will be interesting to see which way that one goes, but probably that the cfpb could be, but well see. It sounds like the 5th circuit is keeping the court busy this term. And the court is willing to hear other cases involving the First Amendment, Public Officials blocking rather engaged constituents on social media. Tell us about those. Sure, ive got another pair so two pair, im not much of a poker player, but john has me beat with three of a kind. So, in this case, these cases arise out of the widespread practice of Public Officials blocking people on social media accounts that are used to communicate with the public at large and the question becomes when does a Public Officials social media activity, when is that considered personal and when should it be considered official . Which would then implement the First Amendment because of course, the First Amendment only applies to government actions. Now, the Supreme Court came close to deciding this issue just a few years back in the cases knight First Amendment institute versus trump. As most of you know, the former president made unprecedented use for her personal twitter account for policy instead of the official potus account and frequently blocked those on his policies. And the they ruled, and the blocking of constituents was unconstitutional under the First Amendment. But by the time the case reached the Supreme Court, President Biden had taken office and the case was dismissed as moot. So we have the same issue now being presented again. The first case is a case, Oconnor Ratcliffe versus garnier. There you have two elected School Board Members in Southern California who used their personal, but a public facebook and twitter accounts to communicate with the public. They had created these pages during their campaign and they also had private social media accounts in which they posted to family and friends. Both of these School Board Members blocked two parents who had left comments criticizing the Board Members actions on their posts and the 9th circuit found that there was state action, even though none of the postings were under any specific Government Authority or duty, and even though the posting did not involve School District funding or other support. What the court found was dispositive here is that the postings were about official school board business, hiring and firing, Upcoming School board meetings, alerting constituents real time about safety and Security Issues at the school and theyre all events which arose out of their official status as School Board Members. The things they discussed on these posts were only due to their positions as School Board Members and essentially, these pages were swathed in the trappings of their offices and therefore, a First Amendment violation. Now, the majority of federal courts of appeals, including the Second Circuit and 9th circuit have used this kind of test, very fact specific test called the purpose and appearance test. And essentially, that boils down to if youre acting like a state actor and youre quacking like a state actor, then youre a state actor, but the 6th circuit in this other case which presents a conflict lindsay versus reed, a duty or authority test, finding that theres state action only if the Public Officials use the account to perform a governmental duty or specifically under the authority of their office. And so, in linky we have a city manager port huron, michigan, who created a public figure facebook page. The page identified him as the city manager. Although he had personal posts on family and friends, he also posted about city programs, policies and initiatives. For example, during the pandemic, he posted county health data, information on Financial Relief and social distancing recommendations. One of his constituents frequently commented on the page, frequently criticizing the covid policy and actions. And he responded by blocking him and the 6th circuit said theres no state action because the account, the social media account did not belong to the office of the city manager and he did not rely on Government Employees to maintain the account and there was no state law that compelled him to maintain the account. Full disclosure, participating in both weve seen a lot of these cases both official and personal accounts, government actors blocking users, deleting criticism, and even filtering comments. In the campus context back in 2020, we published a report on this practice, and its a pervasive practice public by filtering, deleting and blocking critical comments. So it will be interesting to see how this one turns out. So, dan, Benjamin Franklin once observed nothing can be certain except death and taxes. The justices will hear a case involving taxes on unreallized income. Can they tax were beginning the poker analogy, can they tax you when you win a hand before you walked away from the table . Moore versus United States is really the most fundamental question in tax law, which is what is income. And the setting of it is sort of the opposite of rahimi, the Second Amendment was neglected a long time for the court and coming into attention recently. 16th amendment enacted in 1913 came in for a lot of attention in the 20s, 30s, 40s, 50s and has gotten comparably little since then. Under the original Constitution Congress no captation or other direct tax laid by congress. Captation, per capita, a head tax. Direct tax meaning anything else, without an apportionment among the states by population. That was held in 1895 to prohibit congress in the pollic case to prohibit congress from enacting an income tax which it had done in the civil war. In 1913, the 16th amendment enacted empowered congress to lay and collect taxes on income from whatever source derived. And what is actually being challenged in work is tcga, the trump task bill basically that passed in 2017 which was designed to deal with what congress felt to be a problem of american money invested in Foreign Corporations that wasnt being repay repatrioted and one of the things that congress did impose a onetime repatriation tax and any income of those controlled Foreign Corporations that was overseas, since 1986, would be subject to a onetime tax, whether or not it had been, you know, realized whether or not the person had received, you know, dividends or stocks, and then after that, a whole new tax regime. And so, the question is, this is very much like a you know, it looks like a wealth tax. Or a property tax even to some extent. Although the government argues that its essentially a wealth tax. The dispute here, the petitioners are relying on a 1920 case and they say that its really a dispute over what the case law holds although the courts, you know, being the courts can always just decide that the case law is all wrong. But the petitioners say that under eisner, realization is the essential test, that if something goes up in value, you dont realize the income on it until you sell it, you know, until you basically remove the money and eisner was a case involving stock dividend, where somebody owns stock in standard oil as it happened and they split the stock or give a stock dividend and people went from owning a certain number of shares to traditional number of shares. The amount of what theyd owned in the company had not changed and the court says thats not a taxable event, thats not income. But there have been other cases since then, some involving Partnership Interest and the government says that essentially, look, the congress can look beyond the Corporate Forum as long as theres an accession to wealth, as long as the money you had increased thats income whether or not its been realized and therefore congress can tax it. You know, the petitioner puts it in their view realization distinguishes income from property and what makes income income. I think that the 9th circuit may have taken a very broad view and probably put things in broader language than the court is ready to accept, but i think that this is probably an uphill battle to get what the petitioners are looking for in terms of the, you know, a real restriction on what would essentially be a wealth tax, but since the court hasnt looked at the text of the 16th amendment, you know, at this level in some time, its hard to say whether theyre ultimately going to go. So i also want to give panelists an opportunity to talk about pending petitions, but i want to mention two petitions granted this morning in the property space and property rights. One is, im not sure if im going to butcher this, duvalier versus texas brought by our friends from the institute of justice. The question is whether the just compensation clause itself is executing or whether a legislature has to pass a law with a cause of action for a Property Owner to seek compensation. And the second issue is sheets versus county of el dorado, california brought by a former pls attorney paul beard, hes now in private practice. It involved legislative actions. Existing Supreme Court precedent one of way was a pls case, says that local governments cant use permitting processes to get things from Property Owners that they would otherwise need to pay for. So, this is seeking to extend that to the legislature, so, the permitting process cases deal on an individual level, a case by case determination and the legislative exacting, can the legislature do on a, you know, entire citizen basis, what the court has said cant be done for permitting, so, those are two that the courts going to hear later this term that were granted this morning. John, i know theres one another First Amendment that youre watching. This one is versus the county of westchester, new york, i was making sure i had gotten an irish name correct. So in 2000, hill versus colorado the Supreme Court by 63 vote upheld an abortion kind of access law in colorado that said that basically there was, in front of an abortion clinic, you couldnt come within eight feet of someone if you were for purposes of engaging in oral protest, education or counseling, unless that person consents. And the Supreme Court upheld that. They held it was not a it was not content based which puzzles me and this is why ive been watching it ever since, and they held that it was narrowly tailored. Fast forward 2014. In mccullen versus coakley, 54 vote involume date add Massachusetts Law that set up a 34foot buffer with a strange voting group there. Roberts joined by the four liberals at the time which held that, you know, they didnt depart from hill versus colorado by saying that it was content neutral, but they said that it was basically wasnt narrowly tailored and involume dated it for prohibiting too much speech. In any event, within days of the dobbs decision, westchester new york adopted a statute intentionally modeled on the colorado law. Debra challenges it, i think she went to the counselor, and asked that it be overruled. There are a couple of kind of noteworthy things since then. In justice thomas, gorsuch i think even more significantly, i didnt notice this the first time, but the dobbs majority cited hill as an example of how abortion law distorted First Amendment doctrines. So, clearly theyve already thrown quite a bit of cold water on that precedent. I think, you know, ive always sort of thought that that case was living on borrowed time because you know, Justice Kennedy, you know, his influence is waning, but not in the First Amendment. The court looks more like when it comes to First Amendment issues than it did even at times when he was on the court. Ive always thought that hill versus colorado is living on borrowed time. The only question, whether this is the time that it will be overruled because they have a lot of potential overruling on the docket for this term. And it didnt come from the 5th circuit. Didnt come from the 5th circuit. And the Pacific Legal foundation has petitions up at the court now. And i want to mention one we filed last month and we dont expect to hear from the court. The other side hasnt filed a response yet. But the case is coalition for tj versus Fairfax County school board and gotten a decent amount of Media Attention and went up to the Supreme Court for an emergency stay last year. By way of background over the summer, Supreme Court held that public universities and colleges that accept federal funds cannot use racial preferences in admissions. The Court Previously said that limited use of race in College Admissions was permissible under the constitution. If it was aiming to achieve student body diversity. Court has never applied this rational k through 12, but weve seen it creep into admissions processes at competitive k through 12 schools across the country. One such case confirms Thomas Jefferson high school which is the top science and Technology Magnet school in the country. The student body used to have a large majority of asianamerican students and a few years ago, the school board decided that they wanted to change the racial demographic of the student body so that it mirrored the demographics of Fairfax County more broadly. So the school board threw out the rigorous admissions test that they used previously and replaced it with a new system where most of the spots were filled by automatically admitting the top 1. 5 of each of graduates from each of the Fairfax County middle schools. So, this led to a plummeting of asianamerican students in the following class. Plf represents a group of parents and alumni who have charged this arguing it violates the 14th amendment guarantee of equal protections. And this is an instance of sort of the next wave after the student for fair admissions case where were going to see more things in the space of proxy discrimination. While this is neutral on its face, we have the receipts. The Text Messages among the School Board Members are clear as day. I mean, they show their discriminatory, that they were intentionally trying to change the graphics and change the number of Asian Americans in the student body, definitely one to keep an eye on. Before we open it up for questions from the audience to start thinking, are there other petitions that you all want to mention . A couple of other First Amendment cases of important at the time petitions to watch. This is socalled bias Response Teams at public universities, whether or not they First Amendment, were hearing the determine orwellion tossed around and perhaps too loosely. This is one of those the bias Response Teams are literally speech police. I mean, they are groups of students who, if you i believe in this specific case in Virginia Tech example, the motto was, if you see something, say something, borrow aring off, you know, of course the 9 11 Homeland Security motto after 9 11. So that one is going to be an important case to watch about, you know, when can these kind of bias Response Teams violate the First Amendment and the limits on them. And another one is called freeze versus formela, liable laws. In this case, Police Arrested a man after he criticized a police chief on facebook. The charges were thankfully dismissed, but the lower courts found there was no First Amendment violation because of the actual statute did not violate the First Amendment and it was not vague. So they filed amicus brief asking the court to for the it doesnt belong in modern day First Amendment jurisprudence. Not seeing any questions yet. Ill try to invite one thing, one thing im keeping an eye on, too, is the general issue of general and election voting laws. Theres only one case on the whole docket right now, a redistricting case that the court turned away a redistricting case recently coming back to it for a second time. So i think its going to be interesting to see, one of these i think the court probably doesnt want to do a whole lot more of the cases if it can avoid it, but there may be things coming up in the pipeline that are unavoidable. Sort of the monster of those is the effort to disqualify donald trump from the ballot. Thats actually going to be before the minnesota Supreme Court in early november. So that may be a way that tees up a case that the court might have trouble avoiding. And i have one, too, with the case out of the 5th circuit where judge kaczmarak entered a pi against the producers of the abortion drug. It wound up be narrowed in the 5th circuit. Basically what the 5th circuit did, invalidated much of what judge kaczmarek did. The real bite there to say basically the restrictions on dispensation of the drug have been ramped up to what they were beginning, in 2016. Theyve been loosened since then. It also changes the dosage, oddly, now the dosage has to be tripled again because thats what the dosage was back before 2016. And in any event, its the government and the branded manufacturer, they did it in less than a month. And so they really used breakneck speed to try to get it on for the term. And if granted, its on kind of a glide path potentially to be granted or denied in january, but if its granted in january, it will be argued in april. So, while were oh, weve got a question overhere. Please wait for the microphone and state your state, affiliation and please make it a question, not a speech. Paul, washington attorney, and regarding the ramini case, theres here provisions in the section that for example, bars holding a gun for controlled substances. And the 5th circuit recently ruled that was unconstitutional as applied to a guy using marijuana. So im asking you, in terms of what do you think about that as well as hunter biden being charged with that same provision, but using cocaine. D. C. , but theres also another provision that he lied on the form and Frank Easterbrook ruled thats a separate issue. If you lie on the form even what you lied about is unconstitutional so you could still be prosecuted for that. Yeah, i mean, the its sort of obviously politically interesting that the president s sons legal team is talking about mounting a constitutional challenge to that, but theres a lot that would have to come up to get that, his case to the court, but theres no question that theres a whole mine field in this statute of things that are subject to serious Second Amendment challenges. It doesnt mean theyll all succeed, but you know, i think the parallels in the founding era for, you know, barring somebody for from having a gun because they are a general drug user as opposed to being intoxicated at a particular time. Those are theres not a lot of parallels to that in the founding era. I think thats a tougher case for the government to defend than rahimi. So we often hear about the 63 majority, the 54 majority, pitting the republican appointees against the democrat appointees. But the justices have a tendency to surprise us. Justices gorsuch and jackson teamed up. A series of concurrence defense this past term. Justices sotomayor and kagan clashed, do you anticipate any strange bed fellows in the cases come up . I definitely do, but its one of those things and i cant tell you what theyre going to be. I just know theyre going surprising. Particularly on the conservative side. There are a lot of its more unusual to have cracks on the liberal side, but its kind of more, you see more of that in kind of the post rbg era. One of the justifications for her remaining on the court if she could hold everybody together, but it will be interesting to see, but theres a lot of ideosyncrasies on the court that kind of match up. Theres this old saw, ive never been able to actually find a source for it, but Justice White reportedly said with each new justice its a whole new court and there is some truth to that, even if he never said it. [laughter] i mean, i think that i think that some of those fissures youre talking about are interesting in a narrow level. And talking about the public rights doctrine and the justice some of the issues, the longer the issue has been away from the court, the more possible surprises there can be. You know, just putting on briefly my hat from my old life as a securities lawyer, the court this morning took a section 10b securities fraud case. Now, thats an issue where Justice Kennedy had an eform must amount of influence from his time on the courts. Interesting to see how that comes out now that hes not there. A question over here. Im with the legal foundation. My question is also about rahimi, what the panel thinks, if anything, about the court hasnt acted on the range case, on the circuit after the grant, some would argue that it might be a little bit more of a simple case because youre dealing with nonviolent felon in possession laws. So, is the fact that nothings happened with that case interesting . I mean, possibly, but obviously the court, you know, the court likes to just take these things one at a time. I said that rahimi is a particularly hard case for the challengers to the line. And because its a violent criminal and because even within the context of that statute, theres a specific finding of dangerousness on the part of rahimi, so you dont get to the broader prong of the statute. A question over here . Hi. Glennis from the law group. We are talking to the cases the court will take on this term and there are a lot of cases that the court does not take. Are there particular cases that you hoped the court would take up that they didnt and if theres not a particular case you perhaps were following, do you think theres a doctrinal sufficiency in the case that the court, that they would speak to a certain area of the law if they had the opportunity. Thank you. If anyone wants to comment. Just one note, we expect a big list of denials to come on monday. Finger crossed there are no Pacific Legal foundation petitions in there. But other comments . I think the biggest subject to that caveat, well see what happens. And eager for the Supreme Court to take up and clarify the scope of it. For those who might not know, qualified immunity is a doctrine that was essentially invented by judges not making the deveault rule if a Government Official violates persons rights or immunity. Unless the mraf plaintiff can show that its been established. The Supreme Court has spoken out both sides of its mouth. The points or if there are obvious constitutional violations that theyve pointed to, and this clarity on qualified immunity and hopefully reining it in, especially, you know, comes up a lot in the Police Context with, you know, Police Officers on the ground making split second decisions, but qualified immunity is much broader than that, applying to any Government Official and so you have a lot of instances, especially in the First Amendment context where you have deliberative action, thoughtful action by policy makers and consulted attorneys and then theyre still afforded qualified immunity, i hope the court will take that up and clarify it. Yeah, i wonder whats going on with the justices. A couple of terms ago, i think they had 10 petitions and they denied them all and i wonder if they think that this is something that congress should deal with, whether or not congress could take it up, but anyway, thats definitely an area to keep an eye on. Yeah, and theyve created it. They made their mess, they need to another question here. A virginia resident. Just asking about any perspective on case selection, broader behind the curtain protect on it. So many issues they could take up and how maybe they arrive at what they do. They used to be the explanation that the uniformity of the reaganbush judges and an act of congress that it would pass as much legislation for the win she number of grants. Thats no longer the explanation. Theres plenty out there and does not take them to your guess is as good as mine. I find it frustrating but i dont know where going to think about it. At least Justice Kavanaugh is banging the gong about it a little bit. But its not doing much good. [inaudible] and now we are i think last term it was 58 cases they they heard oral argument in. Thats a severe plummet. I think about anyone has done research on this but i would be interested to see if the length of opinion has corresponded with the decline and how many cases they take. Maybe they need more work and they will write shorter opinions. A question over here. Yes, thank you for taking the question. I was just curious to ask a little bit of a followup on the jarkesy case. And seeing the Supreme Courts recent decision i think it was in april on the exxon versus fdc which dealt with Administrative Law and it very much limited the ability foreign minister law courses to enforce out outse litigants to keep the cases within like within the inhouse system come now they can ask of addition it outside to the District Court. I want to see do thinkis that opinion will have an effect on how the court will rule in jarkesy and perhaps rule against the sec or additionally will it diminish the ability to handle its Enforcement Actions inhouse . I i think it does perhaps reflect skepticism but i think that the question asked is kind of narrow, basically about whether you would like infer basically foreclosing of jurisdiction or Something Like that from so i think it isnt directly on point but do think it reflects a general skepticis skepticism. Any other questions . One here. Thank you. My name is herman baughman come with the National Association question about the Thomas Jefferson case. I believe you said the new procedure for choosing students was on his face nondiscriminatory. It was being attacked because females showing the School Board Members had discriminatory intention. I find that a little hard to understand why if it on its face its fun, why could it be attacked . Reminds me of an area of education where people are trying to get the theory of evolution taught more objectively, often that proposal is rejected because its asserted the proponents of that proposal have a religious motivation. But the proposal, objectivity, prison pro and con makes sense. Its part of a agenda. Why should they be subject to an undetected because of religious motivation . Im curious why in the Thomas Jefferson case why if the new approach for judging students is perfectly nondiscriminatory, why shouldap be subject to attack . Well because it was motivated by improper intent and that matters for equality under the law. They went back and forth over what would be the best way to set up a new admissions system, and this is what they came up with but, unfortunately, well fortunately for us, they werena very clear in their statements come in the hearings about exotic what theyre trying to do. They were the same sort of statements even worsee in fact, that came out in the trial for the harbor and unc cases showing a real pervasive discrimination against asianamericans in this country. I think it is something that should be factored in. I think theres also, but there is frankly a lot of tension in case law over when you