My latest AEI post explains the FCC's latest case before the Supreme Court, asking whether its in-house adjudication of enforcement fines violates the Seventh Amendment. The case will answer an interesting question left open by the 2024 Jarkesy decision.
www.aei.org/technology-a...
Coming Wednesday: online AEI panel on the FCC's targeting of broadcast content (such as the Jimmy Kimmel Show and 60 Minutes's Kamala Harris interview) with free speech expert Robert Corn-Revere of @thefireorg.bsky.social, @profdaniellyons.bsky.social and others
It should not matter who would "win." The use of violence against ones political opponents is antithetical to the existence and maintenance of a free, diverse, democratic republic. If you can't condemn this act, you don't embrace the principles upon which such a society is built.
In which @kateruane.bsky.social, @profdaniellyons.bsky.social, and l dish on Free Speech Coalition v. Paxton, the TikTok ruling, and more.
Not a great SCOTUS term for tech + free speech.
www.youtube.com/watch?v=03q0...
Evaluating the costs and benefits of regulation is notoriously tricky. One reason is the difficulty of estimating "the cost of that which is not seen," the evocative (but cumbersome!) phrase of 19th century economist Frédéric Bastiat. (1/4)
#technology @profdaniellyons.bsky.social
My latest AEI post breaks down oral arguments in last week's USF nondelegation case.
My sense is Respondents made a strategic error by not asking the Court to overturn past precedent.
And the Fifth Circuit's campaign to force the Court's hand on legal Q's isn't working.
t.co/fKbDIqsdTv
My quick take on oral argument in yesterday's #scotus case on the nondelegation doctrine and the FCC's universal service fund.
TL;DR 5 justices are interested in revitalizing nondelegation, but this doesn't appear to be the right case.
fedsoc.org/commentary/f...
U.S. District Judge Dale Ho won’t dismiss the indictment against Eric Adams just yet.
Instead, he appoints PAUL CLEMENT as amicus to argue whether it’s proper to dismiss the indictment under Rule 48a, among other points.
This is gonna be good! storage.courtlistener.com/recap/gov.us...
The outrage prompted by this innocuous joke...BlueSky sometimes seems an actively joyless place.
Seems to me that in a mixed motive case, a content neutral rationale shouldn't shield an explicit desire to regulate content.
Underinclusiveness analysis is good. I've long been concerned with 1A cases suggesting that if Congress can't completely fix a problem, it can do nothing.
But I think it's a problem that the Court ignored the content-based rationales in this mixed-motive case. Leaves room for future fig leaves.
Unsurprisingly, #TikTok ban upheld. Data protection was always gov't's strongest rationale. The key questions were (1) whether the ban was underinclusive, since China could buy/hack data elsewhere, and (2) would Court ignore record evidence of other content-based rationales.
A: No and Yes. (1/2)
Super-interesting discussion in 6th Cir #netneutrality case about how to construe Loper Bright's assurance that it won't upset previous Chevron cases. In Brand X, SCOTUS deferred to FCC's Title I classification. 6th Cir. says this doesn't mean FCC can continue changing its mind about statute.
Big win for Loper Bright: Sixth Circuit strikes down #netneutrality rules and puts an end to the Title I/Title II seesaw.
The net neutrality fight was Justice Gorsuch's Exhibit A regarding how Chevron undermines, rather than promotes, legal certainty.
TikTok ban Supreme Court review granted, on an incredibly tight schedule. Briefs are due Dec 27 and Jan 3, oral arguments Jan 10.
Congratulations!!!
My latest post for AEI breaks down last week's #TikTok decision and examines what's next for the popular but problematic platform.
www.aei.org/technology-a...
December Professor bingo
Oh that sounds miserable. I hope you can get rest soon.
Our cat stays in our bedroom because the other cat will otherwise fight her. She keeps to herself during the day. But if I wake up during the night, she will immediately run up to my side of the bed and demand attention for 5-10 minutes. Then she will run away. Just enough to make sure I'm awake.
It's unsurprising that the DC Circuit upheld the TikTok ban under 1st Amendment strict scrutiny despite how rigorous strict scrutiny is. That's because the Court applied deference. In early work, I noted how deference nullifies any level of constitutional scrutiny. papers.ssrn.com/sol3/papers....
Noticably missing from today's #TikTok ruling, which allows a prior restraint on speech on national security grounds, is any citation to the Pentagon Papers case. H/T @christopherterry.bsky.social
If that's insufficient, Trump can give more time by declining to enforce the law.
Law only requires a divestiture that the president determines is sufficient to remove the app from Chinese government control. Trump doesn't want a ban. He'll look favorably on many offers. (2/2)
Re TikTok, I expect it will forego en banc review and go straight to SCOTUS. But also to step up negotiations on a sale.
It's a comically short time to do a deal of this size. But if there's effort, Biden should extend 90 days. If he doesn't, Trump will. (1/2)
DC Circuit upholds the TikTok ban:
media.cadc.uscourts.gov/opinions/doc...
Buckle up. At least in the tech space, antitrust is going to continue to be a turbulent ride.
BREAKING: Trump Names Gail Slater For DOJ Antitrust, Says Big Tech 'Run Wild'
www.law360.com/technology/a...
I've said this before, but the fact that legal academia (especially at top schools) has significantly turned away from concern with doctrine—in helping judges figure out how to resolve hard cases—creates an opportunity for those lawprofs who want to have actual influence on how law develops.
Oft reapeated, but not correct. Building lots of renewables only reduces emissions if it leads to *burning less* fossil fuels. Emissions scale w/how much we burn, not how much fossil power plant capacity is sitting on the grid. If remaining capacity is used rarely, emissions can still fall sharply.
Sounds like someone has the bandwidth to serve as Associate Dean of Academic Affairs
There is a great movie to be made about the life of Dietrich Bonhoeffer.
But the Angel Studios movie out this week ain't it. Which is really disappointing because I wanted it to be.