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Argument Spotlight: 'Public Forums' and 1st Amendment | Debut SCOTUS Argument Win | Judicial Retirement Spotlight

Today is another one-argument day at the Supreme Court. (Gray v. Wilkie was pulled from the docket because of a mootness issue.) But it’s a significant case in the era of Twitter and Facebook. Below, we give you a quick rundown. And we chatted with the winning lawyer in last week’s landmark decision on excessive fines and civil forfeiture. Tomorrow and Wednesday bring three more arguments before the court recesses until March 18. Thanks for reading, and contact us anytime at tmauro@alm.com and mcoyle@alm.com.



'Public Forums' and the First Amendment

Last week, Justice Clarence Thomas kicked over a First Amendment hornet’s nestby suggesting the Supreme Court should reconsider New York Times v. Sullivan, the landmark 1964 decision that makes it difficult for public figures to win libel lawsuits against the media.

Today, the court hears a lower-profile First Amendment case titled Manhattan Community Access Corporation v. Halleck that could also address another Thomas pet peeve: the court’s “public forum” doctrine, which he says has been unfairly stretched to impose First Amendment rules on privately owned forums—in this case, private operators of public access channels.

“Cable systems are not public property,” Thomas wrote in a 1996 partial dissent. “The public forum doctrine … has never been thought to extend beyond property generally understood to belong to the government.”

This may sound like a ho-hum quibble, but at a time when public figures are making major use of private social media platforms, it’s a big deal. Last year’s successful lawsuit challenging President Donald Trump’s right to block individuals from his Twitter account turned on the public forum doctrine.

In the Manhattan, the Second Circuit concluded that a private-owned public access television channel qualifies as a public forum under the First Amendment.

The prospect that the ruling could have broad implications for the Internet attracted strong amicus attention:

>> The Knight Institute, which sued Trump for his tweet block, filed a brief warning that a decision finding that private platforms can’t be public forums would encourage “government censorship” at a time when “government actors are increasingly harnessing the power of the Internet and social media to establish new expressive spaces.” Knight senior attorney Katherine Fallow was on the brief.

>> On the contrary, says the Chicago Access Corporation, which recruited veteran Erin Murphy of Kirkland & Ellis to write a brief stating that public access channels should not be “subject to the same strict constitutional standards that apply on public streets and in public parks.”

>> The Internet Association, whose members include Facebook, Twitter and LinkedIn, filed a brief on behalf of neither party, but asks the court to rule very narrowly and not peg the Manhattan access channel as a “state actor.” Private property should be deemed a public forum only in “extraordinary circumstances,” wrote Chad Golder of Munger, Tolles & Olson.

Arguing the case for the access channel will be Michael de Leeuw of Cozen O’Connor, while those who want the channel to be viewed as a public forum will be represented by Mayer Brown partner Paul Hughes.



Debut SCOTUS Argument Win for Wesley Hottot

When Wesley Hottot (above) stood before the justices for his debut Supreme Court argument, he had in his pocket a sobriety token, a good luck gesture from his client Tyson Timbs.

As the arguments got underway that November morning in the case Timbs v. Indiana, it became clear that token or no token, luck was running with Hottot, senior attorney at the Institute for Justice.

"It's hard to predict any sort of court decision, but I knew in my heart that we had persuaded at least six of them—one more than you need," he said. "It's nice to have your Supreme Court debut be in a case where not a single person can articulate how you're going to lose. A good first time out."

The justices' unanimous ruling last week—the biggest of the term so far—said the Eighth Amendment's excessive fines clause applies to the states. The case focused on police forfeiture of a Land Rover vehicle, but the ruling could have broader consequences on state agencies and fines.

The decision was a victory not just for first-timer Hottot and Timbs, but also for the Institute for Justice, which has labored long in the forfeiture fight. For much of the institute's history, Hottot said, "we've been looking for ways to invigorate property rights under the U.S. and state constitutions." The Institute for Justice considers asset forfeiture "one of the greatest threats to property rights today," Hottot said.

Hottot, a graduate of the University of Washington School of Law, joined the Institute for Justice in 2008. "I work for a nonprofit so I don’t have to worry about how much to bill the client for preparation," he said. "With our team, I was able to do about a dozen moots, some with outside organizations. Those were tremendously helpful in getting outside our heads."

His most important advice for a new high court advocate is to keep in perspective that "this is just another case." Put all the pageantry aside and "do the same thing you would do for any other case."

The Institute for Justice represents a party in a second case that's awaiting a decision at the high court: Tennessee Wine & Spirits Retailers Association v. Blair.

Continuing the focus on forfeiture, Hottot is working now on a case involving the award of attorney fees under the Civil Forfeiture Act.

"Getting to stand up in the Supreme Court and to talk to the people you spend your professional life learning about, it's just such a thrill. I feel like I've been bitten by a bug. My mission now is to get to do it again."

>> More reading: Clarence Thomas Resumes a Quixotic Campaign, and Gets a Gorsuch Nod



Supreme Court Headlines: What We're Reading

>> Carmel Ebb (above, second from left), believed to be the first female to clerk for a federal appeals court judge, died in Maryland on Feb. 10 at age 94, leaving a legacy as a pioneering lawyer who overcame barriers that made a career in the law difficult for women. Ebb clerked for Judge Jerome Frank of the U.S. Court of Appeals for the Second Circuit. NLJ

>> "Those looking to reform the Supreme Court might want to look away from court packing and instead consider the seemingly mundane issue of judicial retirement—and how it has reshaped the court throughout its history. A new SCOTUS retirement plan might just be the best way to protect the court’s independence from the hyperpartisanship of our times." Politico

>> Is Clarence Thomas heading out or just getting started? Thomas's call for revisiting Times v. Sullivan "reignited a whispering campaign among progressives that the 70-year-old justice is preparing to retire. But those close to Thomas saw something entirely different." CNN

>> A federal appeals case in the 11th Circuit is the latest to test the 2015 U.S. Supreme Court pregnancy-bias ruling Young v. UPS, our colleague Erin Mulvaney reports. ACLU lawyers are pressing the court to revive claims brought by an emergency medical technician. NLJ

>> "While the Establishment Clause’s scope is a matter of dispute, most Supreme Court experts predict the challenge to the Peace Cross will fail, with the justices potentially setting a new precedent allowing greater government involvement in religious expression." Reuters

>> A group of Texas attorneys teamed with Skadden, Arps, Slate, Meagher & Flom in a fight to block the execution of Bobby Moore, a 59-year-old man whose death-penalty case hinges on whether he is intellectually disabled and therefore cannot be executed. Lawyers from Norton Rose Fulbright provided pro bono representation, assisting Skadden litigation partner Cliff Sloan in clinching a major victory for Moore. Texas Lawyer