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3. Skadden improperly limited lawyer access…

Law Firms

Skadden improperly limited lawyer access to email distribution lists, group claims in NLRB filing

By Debra Cassens Weiss

April 28, 2025, 1:19 pm CDT

A workers’ rights group alleges that Skadden, Arps, Slate, Meagher & Flom improperly interfered with protected employee discussions about the law firm’s deal with President Donald Trump when it restricted email distribution lists.

The National Institute for Workers’ Rights filed an unfair labor practice charge with those allegations last week with the National Labor Relations Board, report Bloomberg Law, Law360 and Reuters.

Skadden’s deal, announced March 28 on Trump’s social media platform Truth Social, calls for the firm to provide $100 million in pro bono legal services to support causes favored by Trump and the firm. The agreement also said Skadden will not engage in illegal discrimination based on equity, diversity and inclusion initiatives.

Skadden reached the deal to prevent becoming a target in a punitive executive order.

The charge said “associates used firm email to discuss these changes, submit resignations, plan coordinated rejections of recruitment activities, and express concerns about the impact on what they do, with whom they work, and their ethical obligations.”

A letter sent to the NLRB, along with the labor charge, cited an anonymous Skadden employee who said the firm “turned off firm email lists to silence people” before announcement of the deal.

Curtailing access to email lists interfered with employees’ ability to engage in mutual aid and protection outside of a union, the letter said.

The National Institute for Workers’ Rights submitted the charge because of its concerns about worker rights and was not acting on behalf of Skadden employees, according to the letter. Generally, the National Labor Relations Act allows anyone to file a charge for unfair labor practices, according to Bloomberg Law.

Jeremy D. London, a Skadden executive partner, did not immediately reply to the ABA Journal’s request for comment.

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3. Online ‘gangsta rap’ discussion wasn’t real…

Law Firms

Online ‘gangsta rap’ discussion wasn’t real reason for McCarter associate’s firing, suit alleges

By Debra Cassens Weiss

January 7, 2025, 12:30 pm CST

A former McCarter & English staff associate alleges that the law firm subjected him to a hostile workplace based on his status as a military combat veteran and fired him on the pretext of violating the firm’s social media policy.

Lawyer William D. Brown Jr., a former Navy SEAL who served in the Iraq War, said he was actually fired for complaints about unequal pay and his push to include veterans in the firm’s diversity, equity and inclusion efforts.

Law.com has coverage of the Dec. 24 lawsuit (previewed here), filed in Essex County, New Jersey, superior court.

Brown said he made $100,000 per year in 2023 after six years at the firm as a career bankruptcy associate, compared to $170,000 in base pay for newly hired regular associates. His bankruptcy work was trimmed after a new chairman took over, and he was assigned to child sexual-abuse defense work despite his distaste for the matters, the suit says.

The LinkedIn post that purportedly led to his firing discussed the glorification of violence and drugs in “gangsta rap” lyrics and “radical culture within the Islamic world” that glorifies violence, Law.com previously reported. The firm said the post promoted negative stereotypes of Muslim and Black Americans.

Brown claimed that there were separate standards of conduct at McCarter & English in its interaction with employees “who adhered to political left orthodoxy” and those “who happened to not endorse the same leftist worldview.”

Brown cited an incident in which a tax partner asked him how many people he had killed. The partner later apologized. But the question led Brown to think that rather being perceived as an honorable person who served his nation, he was “feared, loathed and discounted as a mere ‘killer,’” the suit says.

Brown also said a partner asked him “if he was mentally sound” after he asserted on LinkedIn that veterans are paid less than others for substantially the same work and denied opportunities when they speak up for themselves.

A McCarter & English spokesperson provided a statement to Law.com.

“As always with an initial complaint, it tells one side of the story,” the statement said. “Once the full history is brought to light, we are confident we will be fully vindicated. We intend to defend this case against the firm and clear the names of those individuals referenced within the complaint.”

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3. Oregon law barring secret audio recordings…

First Amendment

Oregon law barring secret audio recordings does not violate First Amendment, en banc appeals court says

By Debra Cassens Weiss

January 9, 2025, 11:14 am CST

A federal appeals court has tossed a challenge to an Oregon law that generally bans secret audio recordings.

The en banc 9th U.S. Circuit Court of Appeals at San Francisco ruled Tuesday that the conversational privacy law does not violate the First Amendment.

Law360, Reuters, the Volokh Conspiracy and the Legal Profession Blog have coverage.

The Oregon law generally requires people making an audio recording to notify the target. It was challenged by the activist group Project Veritas, which uses undercover journalism in support of its conservative message.

The law’s “relatively modest notice requirement” is narrowly tailored to a significant government interest in letting Oregon residents know when their conversations are being recorded, the appeals court said in the 9-2 decision.

Judge Morgan Christen, an appointee of former President Barack Obama, wrote the majority opinion.

“Because Oregon’s statute does not discriminate on the basis of viewpoint or restrict discussion of an entire topic, we conclude it is content neutral, and that it survives intermediate scrutiny,” Christen wrote.

The Oregon law has several exceptions to the ban on unannounced audio recordings.

One exception allows oral recordings of conversations during a felony that endangers a human life. Another allows audio recordings of conversations by a law enforcement officer performing official duties in plain view, when the person making the recording has a lawful right to be there. Yet another allows open audio recordings at public gatherings and in private meetings in which participants can reasonably expect that they are recorded.

The 9th Circuit said the law is content neutral because it does not draw distinctions based on a speaker’s viewpoint and was not enacted because of disagreement with a speaker’s message. It also allows other alternatives that allow a would-be recorder to disseminate a message.

“Project Veritas retains numerous alternative channels to engage in its journalistic speech activities,” the 9th Circuit said. “It may employ all the traditional tools of investigative reporting, including talking with sources, reviewing records, taking photographs, recording videos openly during public and semi-public meetings and events, recording videos that do not capture oral conversations, recording conversations after announcing it is doing so, and making use of Oregon’s freedom-of-information laws.

“Project Veritas may have its reporters go undercover and report on what they have seen and heard—without secretly recording its targets—as journalists have done for centuries.”

Project Veritas lawyer Benjamin Barr said his client will seek review with the U.S. Supreme Court. He told Law360 that the decision upholds the “broadest recording law in the nation” and “suffocates a reporter’s ability to investigate corruption and work with whistleblowers.”

The case is Project Veritas v. Schmidt.

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3. Your lawsuit against X is required to be…

Contracts

Your lawsuit against X is required to be filed in Texas, according to new terms of service

By Debra Cassens Weiss

October 23, 2024, 9:11 am CDT

Lawsuits filed against X, formerly known as Twitter, have to be filed in federal court for the Northern District of Texas or in state court in the state’s Tarrant County, according to the social media company’s new terms of service.

X has moved its headquarters from San Francisco to Bastrop, Texas, Reuters reports. That’s within the federal court in the Western District of Texas, which “has far fewer Republican-appointed judges than the Northern District” of Texas, where federal suits must be filed, according to the wire service.

The Northern District of Texas is favored by conservative litigants challenging Biden administration policies, Reuters points out. The terms of service take effect Nov. 15.

The Northern District of Texas includes U.S. District Judge Reed O’Connor, whose financial reports for 2023 showed that he invested between $15,000 and $50,000 in the stock of Tesla CEO and X owner Elon Musk’s electric vehicle company Tesla, report NPR and Law360. O’Connor is presiding in Musk’s defamation suit against the liberal group Media Matters for America, a nonprofit watchdog journalism organization, which alleged that X placed advertising next to neo-Nazi content.

O’Connor has issued “pro-Musk ruling after pro-Musk ruling” in the Media Matters for America suit, according to NPR. In one decision, O’Connor ordered Media Matters for America to turn over its donor lists, Law360 reported. That decision has been stayed pending appeal.

O’Connor is an appointee of former President George W. Bush.

Brian Fitzpatrick, a professor at the Vanderbilt Law School, told Ars Technica that terms of service requiring suits to be filed in specific courts are usually enforced.

“There might be an argument that there was no consent to the new terms, but if you have to click on something at some point acknowledging you read the new terms, consent will probably be found,” Fitzpatrick told the publication in an email.

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3. Judge tosses lawyer’s dueling lawsuit against…

Trials & Litigation

Judge tosses lawyer’s dueling lawsuit against Willkie partner in spat over New York Post story

By Debra Cassens Weiss

October 1, 2024, 10:54 am CDT

A solo practitioner accused of facilitating a negative story about a BigLaw partner in the New York Post can’t sue for a declaratory judgment that his actions were protected by the First Amendment, a Connecticut judge has ruled.

Judge Edward Krumeich II of Connecticut tossed a lawsuit filed by Eric Grayson of Grayson & Associates as a strategic suit against public participation that is barred by a state anti-SLAPP law, Law360 reports.

Grayson’s First Amendment retaliation suit had alleged abuse of process and vexatious litigation by A. Mark Getachew, a partner at Willkie Farr & Gallagher, and his wife, DeNora Getachew.

The New York Post story had alleged that the Getachews stiffed their landlords on rent of $11,000 per month for a mansion in Greenwich, Connecticut; they contended that their repair costs for a pool, a hot tub and a waterfall that weren’t functioning had eclipsed their rental costs and their lease had been breached.

The landlords, who were Grayson’s former clients, were former Disney chief financial officer Lawrence Rutkowski and his company L&S Investments.

The Getachews were the first to sue for alleged abuse of process. They had alleged that Grayson and his then-clients had filed a court affidavit in their rental dispute, so that it could be used in the New York Post article, published in October 2020.

The Getachews filed a federal suit in October 2023 after first trying to add the abuse-of-process claim in their state court suit for breach of the rental lease.

A federal judge refused to dismiss the Getachews’ suit against Grayson and his landlord clients in April.

Krumeich said Grayson couldn’t sue because the underlying matter is about a case of public concern. Grayson’s suit admits that the New York Post article concerned a case of “public interest,” Krumeich said, because of similar situations in which wealthy tenants were accused of “squatting” in mansions to take advantage of eviction moratoriums during the COVID-19 pandemic.

Krumeich also said a declaratory judgment in Grayson’s suit would amount to a declaration that the Getachews’ pending federal suit is invalid, which amounts to an improper advisory opinion.

Grayson and his attorney, Proloy K. Das, did not immediately respond to ABA Journal emails seeking comment. Douglas J. Varga, a lawyer for the Getachews, also did not immediately respond to a Journal email requesting comment.

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3. 2nd Circuit cites push notifications to jurors…

Tort Law

2nd Circuit cites push notifications to jurors as one reason why Sarah Palin deserves new defamation trial

By Debra Cassens Weiss

August 28, 2024, 2:54 pm CDT

Former Alaska Gov. Sarah Palin, a Republican, is entitled to a new trial in her defamation case against the New York Times, partly because a jury finding of no liability was marred by push notifications received by jurors, a federal appeals court ruled Wednesday.

The 2nd U.S. Circuit Court of Appeals at New York said U.S. District Judge Jed Rakoff of the Southern District of New York wrongly intruded on the province of the jury when he ruled during deliberations that the case should be dismissed because of insufficient evidence that the newspaper and one of its editors acted with actual malice.

Rakoff allowed the jury to issue a verdict anyway, and it found no liability. But the verdict was marred by some of Rakoff’s decisions and by push notifications that some jurors received about Rakoff’s finding of no actual malice, the appeals court said in its Aug. 28 opinion.

Law360 covered the 2nd Circuit’s decision in favor of Palin, a Republican who was the 2008 vice presidential candidate. She had sued over a June 2017 editorial linking the shooting of a Democratic congresswoman with a digital crosshairs graphic published by Palin’s political action committee.

Rakoff’s law clerk had learned about the push notifications when interviewing jurors following the verdict to see whether they had problems understanding the legal instructions.

A push notification from a news application can appear at the top of a cellphone or on a lockscreen even when the app is closed, the 2nd Circuit explained.

Jurors said they were not prejudiced by the push notifications, which were “an unfortunate surprise” to Rakoff, the appeals court said. But Rakoff was wrong in concluding that the jury verdict was not prejudiced, the appeals court concluded.

“Given a judge’s special position of influence with a jury, we think a jury’s verdict reached with the knowledge of the judge’s already-announced disposition of the case will rarely be untainted, no matter what the jurors say upon subsequent inquiry,” the 2nd Circuit said. “We therefore conclude that a new trial is warranted on this basis.”

The 2nd Circuit panel also said Rakoff erred by excluding some evidence offered by Palin and by improper jury instructions.

The New York Times editorial had linked a 2011 shooting that wounded then-U.S. Rep. Gabby Giffords, a Democrat from Arizona, to a map by Palin’s political action committee showing targeted electoral districts in a crosshairs. Six people were killed in the shooting, including a federal judge.

The New York Times had declared that “the link to political incitement was clear,” even though the attack was viewed as stemming from the perpetrator’s mental illness, according to the 2nd Circuit.

The New York Times later issued corrections saying the crosshairs were placed over targeted electoral districts, not photos of politicians, and saying there was no established link between political rhetoric and the shooting.

Palin sued the New York Times and James Bennet, then the editorial page editor, who had written the sentence about the link to political incitement being clear.

The 2nd Circuit said Rakoff should have allowed evidence that Bennet’s brother, Michael Bennet, was a Colorado Democratic U.S. senator, that Bennet was involved in his brother’s 2010 reelection bid, that the crosshairs map targeted the districts of two Democrats in the House of Representatives who endorsed Bennet’s brother, and that Palin had endorsed the person running against Sen. Bennet.

The appeals court said the evidence was relevant, and it could lead a reasonable juror to infer that Bennet had “a reason to personally dislike Palin, and that it was therefore more likely that he intentionally or recklessly, rather than inadvertently, connected her” to the shooter who wounded Giffords.

Rakoff should also have allowed introduction of three prior New York Times opinion articles that could “be plausibly read” as casting significant doubt on links between the shooting and the crosshairs map, the 2nd Circuit said. Bennet had testified that he “must have read” the prior articles.

Judge John M. Walker Jr., an appointee of former President George H.W. Bush, wrote the panel opinion. It was the second time that the 2nd Circuit ruled in the case. Rakoff had previously tossed the case without a trial, but the appeals court ruled in 2019 that he followed the wrong procedure and reinstated the lawsuit.

The case is Palin v. New York Times Co.

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3. 5th Circuit becomes ‘proving ground’ for…

Judiciary

5th Circuit becomes ‘proving ground’ for aggressive arguments by conservatives

By Debra Cassens Weiss

September 4, 2024, 8:59 am CDT

The 5th U.S. Circuit Court of Appeals at New Orleans has become “a proving ground for some of the most aggressive conservative arguments in American law,” according to the New York Times.

When the U.S. Supreme Court overturned the right to abortion in June 2022, for example, the 5th Circuit had teed the case up for Supreme Court review, the New York Times reported last week.

In the term beginning this fall, the Supreme Court has agreed to hear five 5th Circuit cases, including a decision challenging the regulation of untraceable “ghost guns” that are made with kits.

The 5th Circuit’s decisions have been “so audacious” that the Supreme Court overruled the appeals court seven times last term, according to the article.

Overturned decisions would have curbed access to the abortion drug mifepristone, would have allowed gun possession by domestic abusers, and would have allowed states to sue over U.S. social media pressure.

Six of the 5th Circuit’s 17 judges are appointees of former President Donald Trump, who appointed 54 appeals court nominees, the most of any president since former President Jimmy Carter, the article reports.

According to a article in the Texas Tribune, the 5th Circuit’s adoption of conservative positions, even when overturned, helps shift the debate to the right.

Decisions by the 5th Circuit “have the effect of taking legal theories that were off the wall and putting them on the wall,” said Steve Vladeck, a professor at the Georgetown University Law Center, in an interview with the Texas Tribune.

Even when conservative decisions don’t prevail, “the effect is to make these cases of national import and give credibility to those arguments,” Vladeck said.

Akhil Reed Amar, a professor at Yale Law School, told the New York Times that the 5th Circuit’s conservative opinions could stem partly from appellate judges jockeying for a nomination to the Supreme Court.

“If you’re MAGA and you think Donald Trump is going to win the election, you can be in the right lane or hard-right lane,” Amar said. “The hard-right lane is the better lane to be in if you want to get yourself nominated.”

Some of the most important cases of the term will be argued this month before the U.S. Supreme Court. On Feb. 8, the justices will return to the bench earlier than planned to hear Trump v. Anderson, which considers whether former President Donald Trump is disqualified from again being president because of Section 3 of the 14th Amendment. On Feb. 26, the court will hear two cases that could have a profound effect on the internet and social media, Moody v. NetChoice and NetChoice v. Paxton.

Trump v. Anderson

Section 3 of the 14th Amendment provides: “No person shall be a senator or representative in Congress, or elector of president and vice-president, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States … to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.”

In December, the Colorado Supreme Court, in a 4-3 decision, ruled that Trump was ineligible to be listed on the presidential primary ballot in that state by virtue of Section 3 of the 14th Amendment.

There are several legal issues before the Supreme Court. First, should the court adjudicate cases under Section 3 of the 14th Amendment or deem them “political questions”? The court has held that cases are nonjusticiable political questions when there is a need for deference to the choices of other elected officials.

(Disclosure: I am one of several law professors who have filed a First Amendment scholars amicus brief in Trump v. Anderson.)

The political question doctrine provides that the federal courts may not adjudicate a matter; it does not bar state courts from doing so. For example, the court held that challenges to partisan gerrymandering are nonjusticiable political questions in federal court, but it has been explicit that state courts can hear such a matter. If the court were to dismiss Trump v. Anderson on this basis, it would mean that the issue would be left to each state to decide.

Second, does Section 3 of the 14th Amendment require congressional legislation in order to be enforced? In 1869, Chief Justice Salmon Chase, writing as a lower court judge, in Griffin’s Case, said Section 3 was not self-executing. Chief Justice Chase wrote, “Legislation by Congress is necessary to give effect to the prohibition” in Section 3.

But it is unclear why legislation would be needed. In fact, in the 1883 Civil Rights Cases, the Supreme Court said the 14th Amendment “is undoubtedly self-executing without any ancillary legislation, so far as its terms are applicable to any existing state of circumstances.” Section 3 allows Congress to remove the bar from holding office but does not require congressional action to enforce it.

Third, does Section 3 apply to the president? Section 3 lists many positions where there is a disqualification, but it does not specifically mention the president. The trial court in Colorado ruled in favor of Trump on this ground. But the Colorado Supreme Court reversed this conclusion and said: “It seems most likely that the presidency is not specifically included because it is so evidently an ‘office.’ In fact, no specific office is listed in Section 3; instead, the section refers to ‘any office, civil or military.’ True, senators, representatives and presidential electors are listed, but none of these positions is considered an ‘office’ in the Constitution. Instead, senators and representatives are referred to as ‘members’ of their respective bodies.” Both sides present arguments from the text and the history of the 14th Amendment as to whether the president is to be considered an officer of the United States.

Fourth, did Trump engage in “insurrection or rebellion”? There are many aspects to this question. Does there need to be a criminal conviction? Nothing in the language of the 14th Amendment requires this, but might the Supreme Court impose such a requirement? What, if anything, is the relevance of the House of Representatives having impeached Trump for his behavior relative to Jan. 6 but the Senate not having convicted him? Does it matter that Trump’s behavior involved speech, and was it expression protected by the First Amendment? What is the definition of “insurrection,” and how is it to be determined if it is met here?

It certainly would be unprecedented for the Supreme Court to disqualify a leading candidate for the president of the United States. But Trump’s actions were unprecedented. It is hard to imagine a Supreme Court case in which the stakes could be higher for our political system and our society.

Moody v. NetChoice and NetChoice v. Paxton

The internet and social media are the most important developments for freedom of speech since the invention of the printing press. The Supreme Court’s decisions in Moody v. NetChoice and NetChoice v. Paxton could have a profound effect on these crucial media.

Florida and Texas adopted laws that prohibit social media platforms from engaging in content moderation and that require them to provide an individual explanation of each decision to remove material. The Florida statute, S.B. 7072, applies to platforms with annual gross revenues of greater than $100 million or more than 100 million monthly users. It prohibits “willfully deplatform[ing] a candidate for office.” Also, a platform is prohibited to “censor, deplatform or shadow ban a journalistic enterprise based on the content of its publication or broadcast” unless that content is obscene. The law requires an individual explanation as to decisions to remove content.

Texas’s law, H.B. 20, is similar. It flatly prohibits “social media platforms” from “censor[ing]” a “user’s expression, or a user’s ability to receive the expression of another person,” on the basis of viewpoint or geographical location. This prohibition applies even if the viewpoint is not expressed on the social media platform; that is, platforms cannot remove users or their posts on the basis of things said elsewhere.

The 11th U.S Court of Appeals declared the Florida law unconstitutional. It stressed that social media platforms, like all other private media companies, have the First Amendment right to choose what to publish. By contrast, the 5th U.S. Court of Appeals upheld the Texas law, emphasizing that internet and social media companies should be regarded as “common carriers” and thus subject to regulation to prevent them from excluding speech.

Social media companies do an enormous amount of content moderation. For example, from October to December 2021, Facebook says it took action against terrorism content 7.7 million times; bullying and harassment 8.2 million times; and child sexual exploitation material 19.8 million times. In the last quarter of 2020, Facebook took action on an average of 1.1 million pieces of content per day.

What would the internet and social media be like without this content moderation? Is it realistic to require an individual explanation every time a social media platform decides to remove material given the huge amount of content moderation that occurs?

Underlying these cases is the question of whether it makes sense to allow states to regulate the internet and social media. An increasing number of states are adopting laws controlling these media in various ways. But does state regulation make sense for such a national and indeed international media?

It is not hyperbole to say that these are the most important cases to come to the Supreme Court about the internet and social media, and they will determine their nature for years to come.

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Erwin Chemerinsky is dean of the University of California at Berkeley School of Law and author of the newly published book A Momentous Year in the Supreme Court. He is an expert in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He’s also the author of The Case Against the Supreme Court; The Religion Clauses: The Case for Separating Church and State, written with Howard Gillman; and Presumed Guilty: How the Supreme Court Empowered the Police and Subverted Civil Rights.

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This column reflects the opinions of the author and not necessarily the views of the ABA Journal—or the American Bar Association.

I do not recall ever facing a new year with such a sense of trepidation and even fear of what to expect. The presidential election campaign of 2024 promises to be unlike any we have seen in American history, and it seems inevitable that the U.S. Supreme Court will play a large role. And the docket for the current term is filled with major issues about controversial matters, such as abortion, administrative law, gun rights and the First Amendment and social media.

The 2024 presidential election

Even with the election 10 months away, already it is clear that the Supreme Court is going to be involved. On Dec. 19, the Colorado Supreme Court, in a 4-3 decision, ruled that Donald Trump was disqualified from being on the Republican primary ballot for president because of Section 3 of the 14th Amendment. This provision precludes anyone who has previously taken an oath of office from holding public office if they have “engaged in insurrection or rebellion” against the United States. On Dec. 28, the Secretary of State of Maine ruled that Trump was disqualified from being on the ballot in that state. On the other hand, the Minnesota Supreme Court came to an opposite conclusion.

It is important for the United States Supreme Court to take the Colorado case and decide quickly whether Trump is disqualified from being on the ballot. It is urgent that this issue be resolved early and for the entire country before a significant number of primaries. The nightmare would be for the issue to come to the court only after Trump had sewn up the nomination or even worse, after he had been selected as president by the Electoral College.

But this is not the only case coming to the court with implications for the election. Trump faces criminal prosecution in federal court in Washington, D.C., for his efforts to undermine the 2020 election. Trump has claimed that he has absolute immunity from prosecution because it involves actions he took during the time he was president. U.S. District Judge Tanya Chutkan ruled against Trump’s claim of immunity, concluding that his actions were not in carrying out the duties of the presidency. Special Counsel Jack Smith asked the Supreme Court to grant review before the matter was heard by the D.C. Circuit. But on Dec. 22, the court, without opinion, denied this request. The D.C. Circuit will hear oral arguments on Jan. 9, and whatever it decides, it is likely there will be review in the Supreme Court. The crucial question will be whether the court grants expedited review so that the criminal trial can proceed before the November 2024 election.

The court granted review in Fischer v. United States, which involves whether a federal statute, 18 U.S.C. §1512(c), which prohibits obstruction of congressional inquiries and investigations, includes acts unrelated to congressional investigations. Although not the statute used in the Trump prosecution, it is the basis for most of the cases against those involved in the Jan. 6 assault on the Capitol.

And, of course, there likely will be many other suits during the election campaign and perhaps after the November election.

Abortion

The Supreme Court has granted review in its first case concerning abortion since overruling Roe v. Wade in 2022. In Food and Drug Administration v. Alliance for Hippocratic Medicine, which has not yet been scheduled for oral arguments, the court will review a 5th Circuit decision that overturned actions of the FDA which made it easier to prescribe mifepristone, a drug used to induce abortions. Although the 5th Circuit overruled a district court decision that would have taken mifepristone entirely off the market, it found that the FDA acted in an arbitrary and capricious manner when it made it easier in 2016 and 2021 to administer the drug.

In 2016, the FDA said that the drug could be used until the 10th week of pregnancy rather than just to the seventh week, reduced the number of required in-person clinical visits from three to one and allowed non-physician health care providers licensed under state law to prescribe and dispense drugs—such as nurse practitioners—to prescribe and dispense mifepristone. It also reduced the dosage from 600 mg to 200 mg.
In 2021, the FDA eliminated the requirement that mifepristone be obtained in person; it was the only drug where there was such a requirement.

It is quite possible the court will not reach the question of the FDA’s authority, instead deciding the case on standing grounds. One of the questions presented is whether the doctors who oppose abortion are injured by the easier availability of mifepristone.

More than half of all abortions in the United States are medically induced using mifepristone. In states that have greatly restricted abortions, including some that have prohibited virtually all abortions since the court overruled Roe v. Wade, medically induced abortions have taken on even greater importance.

Administrative law

This will be an important term for the Roberts court and the administrative state. On Nov. 29, the court heard oral arguments in Securities and Exchange Commission v. Jarkesy, that poses several important issues: Does it violate the Seventh Amendment right to a jury trial for a federal agency to impose monetary penalties? Is it an impermissible delegation of powers for Congress to let the agency choose whether to proceed in federal court or in agency proceedings? Is it a violation of separation of powers to have administrative law judges with protection from removal when there are limits on removal of the top agency officials?

On Jan. 17, the court will hear two cases—Loper Bright Enterprises v. Raimondo and Relentless v. Department of Commerce—about whether it should end Chevron deference, the principle that courts should defer to federal agencies when they interpret the statutes they operate under. These are much anticipated cases about whether the court will overrule Chevron v. Natural Resources Defense Council (1984), which held that federal courts should give deference to agencies when they are carrying out their authority under federal statutes.

First Amendment and social media

Despite the enormous importance of the internet and social media for freedom of speech, there have been relatively few Supreme Court cases about it. That will change this term, as there are three sets of cases addressing the issue.

On Oct. 31, the court heard oral arguments in O’Connor-Ratcliff v. Garnier and Lindke v. Freed. Both involve the question of whether it violates the First Amendment for public officials, with private social media accounts where government business is discussed, to bar critics from access.

In Moody v. NetChoice and NetChoice v. Paxton, which have not yet been set for oral arguments, the court will decide the constitutionality of state laws that prohibit internet and social media platforms from engaging in content moderation. The cases involve laws in Florida and Texas respectively. The 11th Circuit struck down the Florida law as violating the First Amendment, while the 5th Circuit upheld the Texas law. The cases have huge significance in terms of the ability of state governments to regulate the internet.

Finally, there are two cases, also not yet set for oral argument, that involve when the speech of government officials is so coercive as to infringe the First Amendment. In Murthy v. Missouri, the 5th Circuit found that the Biden administration violated the First Amendment by encouraging and pressuring social media companies to remove false speech. In National Rifle Association v. Vullo, the court will consider whether Maria Vullo, then the head of New York’s Department of Financial Services, violated the First Amendment when she urged banks and insurance companies to consider the “reputational risks” from doing business with gun-rights groups like the National Rifle Association. In 1963, in Bantam Books v. Sullivan, the court found that threats of prosecution by government officials were coercion that violated the First Amendment. The court has not addressed this since, but it will do so in these two cases.

Guns

On Nov. 7, the court heard oral arguments in United States v. Rahimi, which involves the constitutionality of a federal statute making it a crime for a person under a restraining order in a domestic violence case from having a firearm. The 5th Circuit declared this unconstitutional because such restrictions did not exist in 1791 when the Second Amendment was adopted. Rahimi provides the court the opportunity to clarify the test that it announced in 2022 in New York State Rifle and Pistol Association v. Bruen. The decision likely will have great ramifications for many other federal, state and local gun regulations.

In conclusion

In just the last two years, the court has overruled Roe v. Wade, dramatically expanded gun rights, significantly changed the law concerning the religion clauses of the First Amendment, imposed a substantial new limit on administrative agencies (the major questions doctrine), effectively overruled 45 years of precedents allowing universities to engage in affirmative action, and for the first time, found a First Amendment right for businesses to violate anti-discrimination laws when they are engaged in expressive activity. There is every reason to believe that 2024 will be another momentous year for the Supreme Court.

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Erwin Chemerinsky is dean of the University of California at Berkeley School of Law and author of the newly published book A Momentous Year in the Supreme Court. He is an expert in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He’s also the author of The Case Against the Supreme Court; The Religion Clauses: The Case for Separating Church and State, written with Howard Gillman; and Presumed Guilty: How the Supreme Court Empowered the Police and Subverted Civil Rights.

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This column reflects the opinions of the author and not necessarily the views of the ABA Journal—or the American Bar Association.

In the past decade, influencer culture has exploded. However, content creation is not just about Gen Zers and millennials promoting new brands, hot products and lifestyle choices.

Anyone with an iPhone and a social media account can create short-form videos and wax lyrical about any number of topics, including the industries that they work in.

Neither are legal professionals immune to the pull of platforms such as TikTok, Instagram and YouTube Shorts. Some are even using short-form videos to inform clients about their law practice; build their business or brand; or shed light on the culture of BigLaw, crafting short-form video content giving an insider look at the profession.

Among them is Alex Su, a former lawyer and head of community development at Ironclad, a contract management software company. During the COVID-19 lockdown in 2020, Su went viral after producing content under the TikTok handle @legaltechbro. Since then, he has continued to create funny and satirical takes on law firm culture, amassing tens of thousands of followers and millions of likes.

In this episode of the Legal Rebels Podcast, Su tells the ABA Journal’s Matt Reynolds how he uses social media for business development, nurtures his audience and sees the future of content creation after federal and state bans on TikTok.