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A Look Ahead at the Supreme Court’s Upcoming Term

By Steven Ellison, Esq. | Last updated on

Ah, October.

In many parts of the country, the leaves are changing color and there's a nip in the air. Football's back on TV (finally), pumpkin spice lattes are all the rage, and Halloween marathons permeate the cable channels. But those more focused on politics know that October is when the Supreme Court begins its new term.

Buckle up, folks. It's going to be another controversial year. There's a lot going on, but we'll touch here on two general areas to keep an eye on.

Administrative Agencies

Beginning a blog with a discussion about administrative agencies may seem, well, boring. But this is where a lot of the action will be this term, and it will have a real impact on the daily lives of all Americans.

There are three big cases. The first is Consumer Financial Protection Bureau v. Community Financial Services Association of America. In response to the financial crisis of 2007, Congress created the CFPB as an independent agency within the Federal Reserve. In 2017, it issued a rule that prohibited lenders from trying to withdraw funds from an account after two consecutive attempts failed for lack of funds (you know, to keep those insufficient funds fees down). A group of lenders sued, claiming that the entire agency, due to its funding mechanism, was unconstitutional under the Appropriations Clause. The very existence of the entire agency is at issue.

The second case is Securities and Exchange Commission v. Jarkesy. In that case, a hedge fund creator was investigated by the SEC for fraud. He eventually was found guilty of securities fraud by an administrative law judge. While his petition for review was pending, the Supreme Court ruled that ALJs were improperly appointed. Although the agency confirmed the fraud findings, the Fifth Circuit Court of Appeals reversed, finding multiple constitutional violations. ALJs routinely decide disputes involving their agency, so the Supreme Court's ruling could dramatically impact the way agencies do business.

And the real biggie in this area is Looper Bright Enterprises v. Raimondo. There's a doctrine that's been around since 1984 called “Chevron deference," which generally says that courts should defer to agency interpretations of statutes and rules within the agency's field of expertise. The practical effect is that agencies win more than they lose. In Looper Bright Enterprises, the Court will have the chance to decide whether the doctrine is still good law and, if not, may give judges the power to exert more control over agency decision-making. Put another way, if Chevron is overturned, federal agencies may have a much harder time enforcing existing and new regulations.

Social Media and the Internet

Maybe administrative law is more interesting to law nerds than normal people, but what's going on with social media in the Supreme Court will affect everyone. Again, there are three cases to watch.

The first is Lindke v. Freed. In that case, James Freed created a Facebook profile to keep in touch with family and friends. When he was appointed to municipal office, he added his job title. When his number of followers grew too large, he made it a public page to get around the 5,000-friend limit. He shared personal and professional updates. Kevin Lindke wasn't a fan of how Freed was handling COVID, so he posted his criticisms on Freed's page. Freed deleted the comments and eventually blocked Lindke, who in turn sued him for violating his First Amendment rights. The Supreme Court will decide when a public official's social media activity amounts to state action that is restricted by the First Amendment.

The second case is NetChoice, LLC v. Paxton. Two states, Florida and Texas, passed laws following the 2020 Presidential Election that bar social media sites from censoring conservative speech under the guise of content moderation. The Eleventh Circuit Court of Appeals ruled that Florida's law violated the social media company's First Amendment rights. On the other hand, the Fifth Circuit Court of Appeals upheld Texas' statute, ruling that you don't have a First Amendment right to censor other people and, further, that social media companies can be regulated like “common carriers" such as phone companies, who can't censor people who use the phone. Although many legal experts think the Eleventh Circuit is right, a conservative Supreme Court could well uphold the Fifth Circuit's decision.

The third case, another biggie, isn't quite before the Court. Yet. In Missouri v. Biden, U.S. District Judge Terry Doughty enjoined the White House, the CDC, the Surgeon General, the FBI, and others from “coercing" social media companies to remove “misinformation" under their content moderation policies. The district court characterized the government's efforts to suppress dissenting views about COVID and the Hunter Biden laptop story as “arguably the most massive attack against free speech in United States history." The Fifth Circuit largely upheld the injunction. Justice Alito, as circuit justice, stayed the order while the Supreme Court considers whether to grant review. Given the significance of the issues involved, we would be surprised if the Court decided not to take the case.

Stay Tuned!

That's it for now, folks. We'll have more to come as the term progresses. In the meantime, prepare the popcorn and get ready for the fireworks!

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