The Supreme Court on Monday added nine new cases to its docket, including a high-profile dispute over the extent of technology companies’ immunity from lawsuits based on the content they host.
The new additions to the docket came in a list of orders from last week’s “long conference” – the first regularly scheduled conference since the justices began their summer recess in July. The justices normally consider around 2,000 petitions at this conference.
Tech companies and terrorism
In Gonzalez v. Google, the justices agreed to take up an important question regarding the scope of Section 230 of the Communications Decency Act, which generally shields internet platforms from liability for content published by others. Congress passed the law in 1996, after a New York court held an internet service provider liable for a defamatory statement posted on the website’s message board.
Two years ago, in a statement respecting the justices’ decision not to review a different case involving the scope of liability under Section 230, Justice Clarence Thomas suggested that the court should consider “whether the text of this increasingly important statute aligns with the current state of immunity enjoyed by Internet platforms.” On Monday morning, the justices agreed to do just that.
The question now before the court is whether Section 230 protects internet platforms when their algorithms target users and recommend someone else’s content. The case was filed by the family of an American woman killed in a Paris bistro in an ISIS attack in 2015. They brought their lawsuit under the Antiterrorism Act, arguing that Google (which owns YouTube) aided ISIS’s recruitment through YouTube videos – specifically, recommending ISIS videos to users through its algorithms.
A divided panel of the U.S. Court of Appeals for the 9th Circuit ruled that Section 230 protects such recommendations, at least if the provider’s algorithm treated content on its website similarly. The majority acknowledged that Section 230 “shelters more activity than Congress envisioned it would.” However, the majority concluded, Congress – rather than the courts – should clarify how broadly Section 230 applies.
The justices also agreed to take up a petition for review filed by Twitter, in a lawsuit filed against it by the family of a Jordanian citizen killed in an ISIS attack on a nightclub in Istanbul. In the same opinion as its ruling in Gonzalez, the 9th Circuit held that Twitter, Facebook, and Google could be held liable, regardless of Section 230, for aiding and abetting international terrorism by allowing ISIS to use their platforms.
Other new cases
In a case known as In re Grand Jury, the justices will weigh in on grand jury subpoenas ordering an unnamed law firm that specializes in international tax issues to turn over documents that the firm says are protected from disclosure.
The law firm provided one of its clients with legal advice and prepared his tax returns. When a grand jury investigating the client issued subpoenas for documents related to the investigation, the firm provided over 20,000 pages of documents, but it declined to turn over other documents, arguing that they are protected by the attorney-client privilege. Some of those documents, the firm said, are “dual-purpose” communications – in which the firm is both providing legal advice and discussing the preparation of the client’s tax returns.
A federal district court held the firm in contempt for its failure to produce the documents, and the U.S. Court of Appeals for the 9th Circuit upheld that ruling.
In Turkiye Halk Bankasi v. United States, the justices agreed to decide whether criminal charges can go forward against a Turkish bank owned and controlled by the Turkish government. The charges stem from an alleged scheme to divert billions of dollars from Iranian accounts held by the bank so that the funds could be used in ways not authorized by U.S. sanctions.
In October 2019, federal prosecutors indicted the bank on charges that included money laundering and bank fraud. The bank asked the federal district court in New York to dismiss the charges, arguing that U.S. courts did not have the jurisdiction to hear a criminal prosecution against it because of its relationship with the Turkish government. The district court rejected that contention, and the U.S. Court of Appeals for the 2nd Circuit upheld that ruling.
In Perez v. Sturgis Public Schools, the justices granted a petition for review filed by Miguel Perez, a deaf student who says that a Michigan school district failed for years to provide him with a qualified sign language interpreter, leaving him an “academic and social outcast.” Perez has asked the justices to decide whether and when federal education law required him to fully pursue his claims against the school district in administrative proceedings even when doing so would be pointless.
Perez, who is now 24, entered the Sturgis Public Schools when he was nine, after emigrating from Mexico. Perez never received a qualified sign language interpreter; instead, he was only assigned a classroom aide who lacked any training in working with deaf students. Just a few months before Perez – who consistently received grades that qualified him for the honor roll – expected to graduate in 2016, the school district told him for the first time that he would not receive a diploma.
Perez filed an administrative complaint against the school district. He alleged that the school district had violated both the Individuals with Disabilities Education Act, which requires school districts to provide students with disabilities with a free appropriate public education, and the Americans with Disabilities Act, which (among other things) bars discrimination against children with disabilities in public schools. A hearing officer dismissed the ADA claim, on the ground that he lacked the power to hear it, and the school board eventually settled Perez’s IDEA claim by agreeing that he could attend the Michigan School of the Deaf.
Perez then brought his ADA claim in federal court, but the district court dismissed it because he had not fully pursued it in the state administrative proceedings after settling his IDEA claims. After the U.S. Court of Appeals for the 6th Circuit upheld that ruling, Perez went to the Supreme Court, which in June asked the federal government to weigh in. In a brief filed on Aug. 24, U.S. Solicitor General Elizabeth Prelogar urged the justices to take up the case, which they did on Monday.
The justices agreed on Monday to review four additional cases:
- Financial Oversight Board v. Centro de Periodismo Investigativo, involving the scope of immunity for Puerto Rico’s oversight board in a lawsuit filed by a nonprofit press group seeking documents from the board.
- Ohio Adjutant General’s Department v. Federal Labor Relations Authority, involving whether the FLRA can regulate the labor practices of state militias.
- Santos-Zacharia v. Garland, involving whether federal immigration law bars a federal court of appeals from reviewing an immigrant’s claim that the Board of Immigration Appeals had engaged in impermissible factfinding because the immigrant had not filed a motion to reconsider.
- Glacier Northwest v. International Brotherhood of Teamsters, involving whether federal labor laws trump a state-court lawsuit against a union for intentionally destroying an employer’s property during a labor dispute.
The nine cases granted today will likely be argued sometime early next year.
Calls for the Biden administration’s views
The justices asked the Biden administration to provide the federal government’s views in four cases:
- Interactive Wearables v. Polar Electro Oy, involving a dispute over the test for patent eligibility;
- Suncor Energy v. Board of Commissioners of Boulder County, presenting questions regarding procedure and jurisdiction in a case brought against companies that produce or sell fossil fuels, seeking redress for injuries allegedly caused by climate change;
- Cuker Interactive v. Pillsbury Winthrop Shaw Pittman, involving what law a federal court deciding a state-law issue in a bankruptcy case should apply; and
- Teva Pharmaceuticals v. GlaxoSmithKline, involving liability for generic-drug manufacturers for labels that carve out patented uses found in the brand drug’s labeling.
There is no deadline for Prelogar to file her briefs expressing the government’s views.
Denials in notable cases
With thousands of cases to consider at last week’s conference, the list of cases that the court declined to take up spanned 40 pages on Monday’s order list. Some of the noteworthy denials included:
- Aposhian v. Garland and Gun Owners of America v. Garland, two challenges to a Trump-era rule that classifies bump stocks – an attachment that harnesses the energy from a semi-automatic rifle’s “kick back” to allow the weapon to fire much faster – as machine guns, which are generally illegal, under federal firearms laws.
- Kowall v. Benson, a challenge to the constitutionality of term limits for Michigan lawmakers – capped at three two-year terms for members of the state’s house of representatives and two four-year terms for members of the state senate. A federal district court rejected the argument that the limitations violate the U.S. Constitution, and the U.S. Court of Appeals for the 6th Circuit upheld that ruling.
- Florida v. United States, involving whether the federal government can sue Florida for violating a part of the Americans with Disabilities Act that prohibits state and local governments from discriminating against individuals with disabilities. The federal government contends that, as a result of Florida’s Medicaid policies, hundreds of children with complex medical needs in the state were being unnecessarily placed in nursing facilities. The U.S. Court of Appeals for the 11th Circuit allowed the dispute to go forward.
- Missouri v. Biden, a return of the challenge by 10 states to the Biden administration’s vaccine mandate for health care workers at facilities that receive federal funding. In January, the Supreme Court granted the Biden administration’s request to be allowed to temporarily enforce the mandate. The justices declined on Monday to intervene again.
This post is also published on SCOTUSblog.