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.

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 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.

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.

The National Institute of Standards and Technology (NIST) seeks comments on the Draft Interagency Guidance Framework for Considering the Exercise of March-In Rights, which sets out the factors that an agency may consider when deciding whether to exercise Bayh-Dole march-in rights. The information received will inform NIST and the Interagency Working Group for Bayh-Dole (IAWGBD) in developing a final framework document that may be used by a funding agency when making a march-in decision.

This panel seeks to answer what the new framework is while also debating the pros and cons. This FedSoc Forum aims for participants to have a better understanding of this proposed policy change, be able to assess the impact should it be enacted, and be motivated to actively engage in the ongoing debate.

In Better Money: Gold, Fiat, Or Bitcoin?, monetary expert Lawrence H. White delves into the timely debate surrounding alternative currencies amidst the backdrop of constant inflation in the fiat currency world. Better Money explains and analyzes gold, fiat dollars, and Bitcoin standards to evaluate their relative merits and capabilities as currencies. It addresses common misunderstandings of the gold standard and Bitcoin, and scrutinizes the evolution of currency, particularly the interplay between market and government roles. White provides provocative analysis of which standard might ultimately provide better money, and argues that we need a market competition among them.
Please join us as Professor Lawrence White joins discussants Alexandra Gaiser and Bert Ely, and moderator Alex Pollock to discuss Better Money.
Featuring:

Prof. Lawrence H. White, George Mason University
Alexandra Gaiser, General Counsel, Strive
Bert Ely, Principal, Ely & Company, Inc.
Moderator: Alex J. Pollock, Senior Fellow, Mises Institute

Garland v. Cargill concerns whether bump stocks are considered “machineguns” as defined by Title 26 of the United States Code. Impacting the realms of both Second Amendment and Administrative Law, the case raises questions concerning the role of lenity, the applicability of the Chevron Doctrine, and the nature of the ATF’s authority. Bump stocks are devices attached to semi-automatic firearms to increase the rate of fire. In 2019, the ATF issued a rule that bumpstocks themselves were machineguns, and thus subject to the rules of Title 26, which marked a significant shift in federal policy. Michael Cargill, the owner of Central Texas Gun Works, challenged this reclassification, arguing it was an unconstitutional overreach by the ATF and the Department of Justice (DOJ). The Fifth Circuit of Appeals ruled in his favor. A significant circuit split on this issue now exists, with the Fifth and Sixth Circuits holding that bump stocks are not machineguns, while the D.C. and Tenth Circuits have held that they are. The oral argument in Cargill is set to be heard before the Supreme Court on February 28, 2024.
Join us the next day as we break down and analyze how oral argument went before the Court.

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Two cases involving NetChoice, a company that represents social media giants like Facebook, Twitter, Google, and TikTok will be heard at the Supreme Court this term. Both cases concern issues of free speech and social media platforms.

In Moody v. NetChoice, LLC, NetChoice challenges Florida law S.B. 7072, arguing it violates the social media companies’ right to free speech and that the law was preempted by federal law. The lower district court found that the law did not stand up to strict scrutiny. Additionally, the court found that this law didn’t serve a legitimate state interest. The U.S. Court of Appeals for the Eleventh Circuit affirmed this ruling.

The First Step Act of 2018, passed as the result of bi-partisan efforts during the Trump administration, aimed to reduce the population of those in federal prison and to limit some federal prison sentences. Over the years some have contended the act is working well, while others argue it has only partially delivered on its goals or it was flawed from the start. Now, as the act recently celebrated its 5-year anniversary, join us for a panel discussing the First Step Act, its impact, legacy, and future.

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On February 21, the Supreme Court unanimously decided McElrath v. Georgia, holding that a jury’s verdict that the defendant was not guilty by reason of insanity of malice murder constituted an acquittal for double jeopardy purposes notwithstanding any inconsistency with the jury’s other verdicts.

McElrath concerned the case of Damian McElrath, who in 2017 was tried for malice murder, aggravated assault, and felony murder Under Georgia Law, in a case where a defendant is claiming insanity at the time of the crime, the jury can render one of four possible verdicts: Guilty, Guilty but Mentally Ill, Not Guilty by Reason of Insanity, or Not Guilty. The jury rendered a split verdict, finding McElrath not guilty by reason of insanity on the malice murder charge and guilty but mentally ill on the felony murder and aggravated assault charges. McElrath challenged his guilty but mentally ill conviction as repugnant to his acquittals. The Georgia Supreme Court, instead of overturning his conviction, vacated both the conviction and the acquittal and remanded the case for a retrial. McElrath then filed a plea in bar asserting that the Double Jeopardy Clause of the United States Constitution prohibited the State from subjecting him to a second trial on the malice murder charge. The Supreme Court heard oral arguments in the case in November of 2023.
Please join us for a post-decision Courthouse steps program where we will break down and analyze this recent decision concerning double jeopardy and criminal law.

On February 8, 2024, the Supreme Court heard Oral Argument in Trump v. Anderson. The Court considered whether the Colorado Supreme Court erred in ordering former President Donald Trump excluded from the 2024 presidential primary ballot.Legal questions involved in the case include whether Section 3 of the Fourteenth Amendment is “self-executing” or requires an additional act of Congress, whether the events of January 6, 2021, constitute an insurrection, and if so whether Donald Trump participated in that insurrection, and whether the President is an “officer of the United States” as meant by Section 3.

On March 4, 2024 the Court issued a 9-0 decision overturning the Colorado Supreme Court’s December ruling, holding that President Trump is not precluded from appearing on Colorado’s presidential primary ballot.

The U.S. antitrust agencies have recently proposed changes to the HSR merger filing process, broadening the scope of review beyond consumer and competitive effects to workers and other non-competition factors. Merging parties would also be required to prepare written responses to questions related to the transaction, bringing the U.S. more into line with filing requirements in certain foreign merger control regimes like the EU. The additional volume and scope of information contained in merging parties’ HSR filings would also allow the antitrust agencies to potentially apply more rigorous scrutiny of proposed transactions at an earlier stage because the information provided likely will take considerable time for the agency to review. This panel will discuss how in-house counsel is navigating these changes.

Featuring:
Kirstie Nicholson, Global Competition Counsel, BHP
Gil Ohana, former Senior Director, Antitrust & Competition, Cisco
Roman Reuter, Senior Counsel, International Competition Affairs, Deutsche Telekom AG
Moderator: Chris Wilson, Partner, Gibson Dunn

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.

• Corner Post v. Board of Governors of the Federal Reserve System (February 20) – Does the six-year statute of limitations to challenge an action by a federal agency begin to run when the agency issues the rule or when the plaintiff is actually injured?
• Bissonnette v. LePage Bakeries Park Street, LLC (February 20) – Labor & Employment; Whether the Federal Arbitration Act’s exemption for the employment contracts of “workers engaged in interstate commerce” applies to any worker who is “actively engaged” in the interstate transportation of goods, or whether the worker’s employer must also be in the “transportation industry.”
• Warner Chappell Music v. Nealy (February 21) – Intellectual Property; Whether copyright plaintiffs can recover damages for acts that allegedly occurred more than three years before they filed their lawsuit.
• Ohio v. Environmental Protection Agency (February 21) – Environmental Law; (1) Whether the court should stay the Environmental Protection Agency’s federal emission reductions rule, the Good Neighbor Plan; and (2) whether the emissions controls imposed by the rule are reasonable regardless of the number of states subject to the rule.
• Moody v. NetChoice, LLC (February 26) – First Amendment; (1) Whether the laws’ content-moderation restrictions comply with the First Amendment; and (2) whether the laws’ individualized-explanation requirements comply with the First Amendment.
• NetChoice, LLC v. Paxton (February 26) – First Amendment; Whether the First Amendment prohibits viewpoint-, content-, or speaker-based laws restricting select websites from engaging in editorial choices about whether, and how, to publish and disseminate speech — or otherwise burdening those editorial choices through onerous operational and disclosure requirements.
• McIntosh v. United States (February 27) – Criminal Law & Procedure; Whether a district court can enter a criminal forfeiture order when the time limit specified in the Federal Rules of Criminal Procedure has already passed.
• Cantero v. Bank of America, N.A. (February 27) – Whether the National Bank Act preempts the application of state escrow-interest laws to national banks.
• Garland v. Cargill (February 28) – Second Amendment; Whether a “bump stock” – an attachment that transforms a semiautomatic rifle into a fully automatic, assault-style weapon – is a “machinegun,” which is generally prohibited under federal law.
• Coinbase v. Suski (February 28) – When an arbitration agreement tasks the arbitrator with deciding whether a dispute should be arbitrated, should courts or the arbitrator decide whether the agreement is narrowed by a later contract that does not address arbitration?

Featuring:

On February 20, 2024, the Supreme Court will hear argument in Bissonnette v. LePage Bakeries Park Street LLC. The court will consider whether the Federal Arbitration Act’s exemption for the employment contracts of “workers engaged in interstate commerce” applies to any worker who is “actively engaged” in the interstate transportation of goods, or whether the worker’s employer must also be in the “transportation industry.”Join us as Prof. Samuel Estreicher previews the case and the questions implicated by its potential outcomes.

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On November 29, 2023, Henry Kissinger died at the age of 100. The former US Secretary of State and National Security Advisor had a long and distinguished career as a scholar and statesman, and his legacy is both prolific and controversial. While many have celebrated his success in resolutely pursuing US global interests, others have criticized Kissinger for his alleged disregard of such values as human rights. This panel discussion explores the complex and multifaceted nature of Kissinger’s legacy, focusing on his interaction with international law and his role in shaping US foreign policy.

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