Each month, a panel of constitutional experts convenes to discuss the Court’s upcoming docket sitting by sitting. The cases covered in this preview are listed below. - https://www.scotusblog.com/case-files/cases/snyder-v-united-states/ (April 15) - Whether section 18 U.S.C. § 666(a)(1)(B) criminalizes gratuities, i.e., payments in recognition of actions a state or local official has already taken or committed to take, without any quid pro quo agreement to take those actions. - https://www.scotusblog.com/case-files/cases/chiaverini-v-city-of-napoleon-ohio/ (April 15) - Whether Fourth Amendment malicious-prosecution claims are governed by the charge-specific rule, under which a malicious prosecution claim can proceed as to a baseless criminal charge even if other charges brought alongside the baseless charge are supported by probable cause, or by the “any-crime” rule, under which probable cause for even one charge defeats a plaintiff’s malicious-prosecution claims as to every other charge, including those lacking probable cause. - https://www.scotusblog.com/case-files/cases/fischer-v-united-states/ (April 16) - Whether the U.S. Court of Appeals for the District of Columbia Circuit erred in construing 18 U.S.C. § 1512(c), which prohibits obstruction of congressional inquiries and investigations, to include acts unrelated to investigations and evidence. - https://www.scotusblog.com/case-files/cases/thornell-v-jones/https://www.scotusblog.com/case-files/cases/truck-insurance-exchange-v-kaiser-gypsum-company-inc/ (April 17) - Whether the U.S. Court of Appeals for the 9th Circuit violated this court’s precedents by employing a flawed methodology for assessing prejudice under Strickland v. Washington when it disregarded the district court’s factual and credibility findings and excluded evidence in aggravation and the state’s rebuttal when it reversed the district court and granted habeas relief. - https://www.scotusblog.com/case-files/cases/city-of-grants-pass-oregon-v-johnson/ (April 22) - Constitutional Law, First Amendment - It explores the standards required for a plaintiff alleging an arrest in retaliation for speech protected by the First Amendment, focusing on what evidence must be shown to prove such a claim, especially in light of exceptions outlined in precedent cases. - https://www.scotusblog.com/case-files/cases/smith-v-spizzirri/ (April 22) - Whether Section 3 of the Federal Arbitration Act requires district courts to stay a lawsuit pending arbitration, or whether district courts have discretion to dismiss when all claims are subject to arbitration. - https://www.scotusblog.com/case-files/cases/department-of-state-v-munoz/ (April 23) - (1) Whether a consular officer's refusal of a visa to a U.S. citizen's noncitizen spouse impinges upon a constitutionally protected interest of the citizen; and (2) whether, assuming that such a constitutional interest exists, notifying a visa applicant that he was deemed inadmissible under 8 U.S.C. § 1182(a)(3)(A)(ii) suffices to provide any process that is due. - https://www.scotusblog.com/case-files/cases/starbucks-corp-v-mckinney/ (April 23) - Whether courts must evaluate the National Labor Relations Board’s requests for injunctions under Section 10(j) of the National Labor Relations Act using the traditional, stringent, four-factor test for preliminary injunctions or some other more lenient standard. - https://www.scotusblog.com/case-files/cases/moyle-v-united-states-2/ (April 24) - Whether the Supreme Court should stay the order by the U.S. District Court for the District of Idaho enjoining the enforcement of Idaho’s Defense of Life Act, which prohibits abortions unless necessary to save the life of the mother, on the ground that the Emergency Medical Treatment and Labor Act preempts it. - https://www.scotusblog.com/case-files/cases/trump-v-united-states-3/ (April 24) - Whether and if so to what extent does a former president enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office. Featuring: - Anya Bidwell, Attorney, Institute for Justice - G. Roger King, Senior Labor and Employment Counsel, HR Policy Association - Harry Graver, Associate, Jones Day  - Timothy Sandefur, Vice President for Litigation, Goldwater Institute - Prof. John C. Yoo, Emanuel S. Heller Professor of Law, University of California at Berkeley; Nonresident Senior Fellow, American Enterprise Institute; Visiting Fellow, Hoover Institution - Moderator: Danielle Thumann, Partner, McGuireWoods

Over the past decade, the tension between First Amendment rights and public accommodations laws has grown, as wedding vendors have refused to serve same-sex weddings pursuant to their consciences. On June 30, 2023, the U.S. Supreme Court issued its decision in 303 Creative LLC v. Elenis, which held that the free speech clause prohibits a state from forcing a website designer to create messages with which the designer disagrees. That said, the Court has yet to issue a clear decision that resolves these issues under the free exercise clause, even though wedding vendors almost invariably object to providing services on religious grounds. Indeed, when the free exercise question was addressed in Masterpiece Cakeshop Ltd. V. Colorado Civil Rights Commission, the Court largely punted on the issue and resolved the case on very narrow procedural grounds. Wedding-vendor litigation continues to percolate throughout the country and raises important questions for First Amendment jurisprudence, including whether the Supreme Court should reconsider Employment Division v. Smith, whether the free exercise clause extends protection to wedding vendors in a similar way to the free speech clause, and whether the so-called “hybrid rights doctrine” is a viable theory for analyzing religious claims to exemptions. Please join us as we discuss these issues and others with some of the leading scholars and practitioners in this space. Featuring: Prof. Andrew Koppelman, John Paul Stevens Professor of Law, Northwestern University School of Law Prof. Douglas Laycock, Robert E. Scott Distinguished Professor of Law Emeritus, University of Virginia School of Law Jonathan Scruggs, Senior Counsel and the Director for the Center for Conscience Initiatives, Alliance Defending Freedom (Moderator) Austin Rogers, Chief Counsel at Senate Judiciary Committee

In Gonzalez v. Trevino, Petitioner Sylvia Gonzalez is a 72 year-old city councilwoman from Castle Hills, Texas. Ms. Gonzalez believed that the city's mayor and city manager were ignoring her constituents and her own frustrations with the city. The mayor and other allies of the city manager in turn planned to unseat the councilwoman. The mayor and police chief next filed charges with a rarely-used law to have the councilwoman arrested, booked, and put in jail. Ms. Gonzalez maintains that she did nothing wrong. After a day in jail, local media picked up the story and the local prosecutor dropped the charges. Petitioner is represented by the Institute for Justice and she filed a 2020 lawsuit against the city officials. The city filed a motion to dismiss claiming qualified immunity, which the district court denied. An appeal followed to the Fifth Circuit, which reversed the district court over a dissent from Judge Oldham. The Supreme Court granted certiorari this past fall. On March 20, 2024, the Supreme Court heard oral argument in Gonzalez v. Trevino. This was a discussion with Anya Bidwell, Attorney at the Institute for Justice, as she broke down the case and its developments after oral argument.

Professor Zack De Piero was an English professor at the Pennsylvania State University Abington campus before resigning and filing a lawsuit against the University in 2023 alleging that administrators and faculty members discriminated against him because of the color of his skin. Professor De Piero claims the University's diversity, equity, and inclusion (DEI) initiatives created a hostile work environment with a race-essentialism focus. Professor De Piero was required to attend professional development meetings to view videos such as “White Teachers Are a Problem”, and was directed to “assure that all students see that white supremacy manifests itself in language and in writing pedagogy.” He took the prescribed course of action and filed a bias report, to no avail. Professor De Piero has now filed suit against Penn State in federal court, alleging violations of his civil rights under federal and Pennsylvania law. Penn State initially argued that De Piero's disparate treatment claim must be dismissed because he resigned from his job at Penn State, and, thus, did not suffer an adverse employment action. On January 11, 2024, the United States District Court for the Eastern District of Pennsylvania denied Penn State’s motion to dismiss the discrimination claim against it by Professor De Piero. The case has now entered the discovery phase. This was a Litigation Update on De Piero v. Pennsylvania State University with Michael Allen, one of Professor De Piero's attorneys and Partner at Allen Harris Law, and moderator William Trachman, General Counsel at the Mountain States Legal Foundation.

In Pulsifer v. United States, the Supreme Court considered an Eighth Circuit case that raised the question: "Must a defendant show he does not meet any of the criteria listed in 18 U.S.C. § 3553(f) to qualify for a sentence lower than the statutory minimum?". Key to that question was the meaning of the word "and" in the statute, as the Court was asked to consider whether text and context required "and" in this case be read to mean "or". Oral argument was heard on October 2, 2023, and judgment was rendered in favor of the government (affirming the 8th Circuit's decision) on March 15, 2024. The decision split the Court 6-3, with Justice Kagan authoring the majority opinion. Justice Gorsuch authored a dissent, which Justices Sotomayor and Jackson joined.In the wake of this decision, join us for a Courthouse Steps Decision Forum as we discuss its potential ramifications. Featuring: Vikrant P. Reddy, Senior Fellow, Stand Together Trust

Each month, a panel of constitutional experts convenes to discuss the Court’s upcoming docket sitting by sitting. The cases covered in this preview are listed below. - https://fedsoc.org/case/murthy-v-missouri (March 18) - Whether the Supreme Court should stay the injunction of the U.S. District Court for the Western District of Louisiana restricting federal officials’ and employees’ speech concerning content moderation on social media platforms. - https://fedsoc.org/case/national-rifle-association-of-america-v-vullo (March 18) - Whether the First Amendment allows a government regulator to threaten regulated entities with adverse regulatory actions if they do business with a controversial speaker, as a consequence of (a) the government’s own hostility to the speaker’s viewpoint or (b) a perceived “general backlash” against the speaker’s advocacy. - https://fedsoc.org/case/diaz-v-united-states (March 19) - Criminal Law & Procedure; Whether in a prosecution for drug trafficking — where an element of the offense is that the defendant knew she was carrying illegal drugs — Federal Rule of Evidence 704(b) permits a governmental expert witness to testify that most couriers know they are carrying drugs and that drug-trafficking organizations do not entrust large quantities of drugs to unknowing transporters. - https://fedsoc.org/case/truck-insurance-exchange-v-kaiser-gypsum-company-inc (March 19) - Bankruptcy law - This case addresses whether an insurer with responsibility for a bankruptcy claim qualifies as a "party in interest" able to object to a plan of reorganization under Chapter 11 of the Bankruptcy Code. It touches on the rights and roles of insurance companies within the framework of bankruptcy proceedings. - https://fedsoc.org/case/gonzalez-v-trevino (March 20) - Constitutional Law, First Amendment - It explores the standards required for a plaintiff alleging an arrest in retaliation for speech protected by the First Amendment, focusing on what evidence must be shown to prove such a claim, especially in light of exceptions outlined in precedent cases. - https://www.scotusblog.com/case-files/cases/texas-v-new-mexico-and-colorado/ (March 20) - Environmental Law - This dispute involves the apportionment of the waters of the Rio Grande among the states and the role of the federal government in such agreements. It represents the latest chapter in a long-running legal battle over water rights and usage. - https://fedsoc.org/case/becerra-v-san-carlos-apache-tribe (March 25) - Federal Indian Law, Medical Law - The question is whether Native American tribes that manage their own healthcare programs are entitled to receive funds from the Indian Health Service to cover costs associated with services that are covered by insurance. This case examines the intersection of tribal sovereignty, healthcare, and federal funding obligations. - https://fedsoc.org/case/harrow-v-department-of-defense (March 25) - Ad Law - It questions whether the 60-day deadline for a federal employee to petition the U.S. Court of Appeals for the Federal Circuit to review a final decision of the Merit Systems Protection Board is jurisdictional, impacting the rights of federal employees in the review process. - https://fedsoc.org/case/food-and-drug-administration-v-alliance-for-hippocratic-medicine (March 26) - Ad Law - It centers on the FDA’s approval process and actions to increase access to mifepristone, a drug used in medication abortions. The case challenges the FDA's decisions on drug safety and accessibility, testing the limits of agency authority and judicial review. - https://fedsoc.org/case/erlinger-v-united-states (March 27) - Criminal Law - The question is whether, for the purposes of imposing an enhanced sentence under the ACCA, it should be a jury or a judge who decides if the defendant’s previous convictions occurred on different occasions. - https://fedsoc.org/case/connelly-v-united-states (March 27) - Tax Law - The case examines whether the proceeds of a life insurance policy, taken out by a closely held corporation on a shareholder to facilitate the redemption of the shareholder’s stock, should be considered a corporate asset when calculating the value of the shareholder’s shares. Featuring: - Robert Corn-Revere, Chief Counsel, FIRE - Tony Francois, Partner, Briscoe Ivester & Bazel  - Eli Nachmany, Associate, Covington & Burling LLP - Brett Nolan, Senior Attorney, Institute for Free Speech  - Jennifer Weddle, Shareholder, Greenberg Traurig - Moderator: Michael Francisco, Partner, McGuireWoods

Academic freedom and free speech at colleges and universities are at the center of ongoing litigation in Gerber v. Ohio Northern University. In April 2023, Dr. Scott Gerber was abruptly removed from his law class by school security and brought to the dean's office. Dr. Gerber was then told by Dean Charles H. Rose III that he must resign or face termination proceedings. During his time teaching, he had been a long-standing critic of the University's use of race, sex, and ethnicity factors in hiring and student admissions. He refused to resign and the University soon commenced termination proceedings against him. Dr. Gerber was not told what he was accused of doing, despite his contractual right as a tenured faculty member to be informed with “reasonable particularity” of the accusations against him. Hardin County, Ohio Court of Common Pleas issued a temporary restraining order against ONU, requiring them to notify Dr. Gerber of what he was alleged to have done. At the hearing, the University allegedly failed to give Dr. Gerber a fair hearing as they brought forward new accusations and denied Dr. Gerber his contractual right to interview witnesses. Dr. Gerber, who is represented by the America First Legal Foundation, has now filed suit against Ohio Northern University to restore his reputation, regain his employment, and secure compensation for the actions of the University. This was a Litigation Update on Gerber v. Ohio Northern University with Ben Flowers, one of Dr. Gerber's attorneys and a Partner at Ashbrook Byrne Kresge, moderated by Dan Morenoff, Executive Director at American Civil Rights Project.

Artificial intelligence is the most important technological tool being developed today, but the use of preexisting copyrighted works to train these AI systems is deeply controversial. At the end of 2023 the New York Times sued OpenAI and Microsoft, alleging that OpenAI's use of articles from the New York Times to train their ChatGPT large language model constitutes copyright infringement. An answer is due at the end of February, and it's expected the case will revolve on the question of whether the use of the copyrighted content of the Times was a fair use. The fair use analysis will likely turn on whether the use of copyrighted content to train a AI system "transforms" the work in a way which makes the use fair. The Supreme Court has spoken on this question twice recently, holding that Google's use of parts of Oracle's Java programming language to build the Android operating system was transformative, but that the licensing of a Andy Warhol work based on a photograph by Lynn Goldsmith was not transformative of Goldsmith's work. Also important and perhaps most on-point is a decision of the Ninth Circuit Court of Appeals that Google's Image Search system is transformative of the photographs it indexes and displays as thumbnails. To help understand this case Professors Charles Duan from the American University Washington College of Law and Zvi Rosen of the Simmons School of Law at Southern Illinois University was joined by Steven Tepp of Sentinel Worldwide, who is also a Lecturer at the George Washington University School of Law and formerly of the U.S. Copyright Office. John Moran of Holland & Knight moderated the panel and provided additional perspective.

On March 18, 2024 the Supreme Court will hear two cases related to alleged “jawboning” -Murthy v. Missouri & NRA v. Vullo. Murthy v. Missouri, originally filed as Missouri v. Biden, concerns whether federal government officials had violated the First Amendment by "coercing" or "significantly encouraging" social media companies to remove or demote particular content from their platforms. This content spanned various topics, including the origin of the COVID-19 pandemic, the efficacy of masks and vaccines, and the integrity of the 2020 presidential election, among others. National Rifle Association of America v. Vullo raises the question of whether the First Amendment allows a government regulator to threaten regulated entities with adverse regulatory actions if they do business with a controversial speaker, as a consequence of (a) the government’s own hostility to the speaker’s viewpoint or (b) a perceived “general backlash” against the speaker’s advocacy. This lawsuit, initiated by the NRA in response to what it perceives as targeted actions by Vullo to undermine its financial support structure, argues that these measures amount to unconstitutional viewpoint discrimination, effectively punishing the NRA for its protected speech. Join us for a conversation on the right previewing these cases and the issues at play. Featuring: Robert Alt, President & CEO, The Buckeye Institute Will Duffield, Policy Analyst, Cato Institute [Moderator] Casey Mattox, Vice President for Legal and Judicial Strategy, Americans for Prosperity

Speech First, Inc. v. Sands concerns a Virginia Polytechnic Institute and State University (Virginia Tech) policy that created a bias response team and protocol where students could report bias incidents. Under this policy, reported incidents would be reviewed and possibly reported to the administration for a formal reprimand. In 2021, Speech First, Inc., a group that focuses on students' freedom of speech on university campuses, filed suit against Virginia Tech on behalf of several students for chilling their right to speech through the bias incident policies. The district court hearing the case ruled in favor of Virginia Tech finding that the Bias Incident policy didn’t specifically outline any particular speech that was chilled for the students being represented and thus the policy wasn’t found to chill speech. In 2022, the Fourth Circuit affirmed the lower court's decision. The Supreme Court granted certiorari in the case, gave judgment with respect to the Bias Policy claims vacated, and remanded the case to the 4th Circuit with instructions to dismiss those claims as moot under United States v. Munsingwear, Inc. Multiple Justices, including Justices Thomas and Alito, filed dissents. Join us for a litigation update on this important case in light of those developments. Featuring: Abigail Smith, Amicus Attorney, The Foundation for Individual Rights and Expression (Moderator) Tyson Langhofer, Senior Counsel, Director of Center for Academic Freedom, Alliance Defending Freedom