The justices will also consider if federal courts should defer to the Board of Immigration Appeals' determinations on whether asylum seekers suffered past persecution and if defendants previously convicted of a crime can bring civil rights suits to prohibit future prosecutions.
Here, Law360 breaks down the week's oral arguments.
Internet Provider Liability
On Monday, the Supreme Court will debate whether internet service providers can be held liable for failing to cut off service to customers who they knew were engaged in infringing activity online.
Cox Communications Inc. has asked the justices to overturn a Fourth Circuit decision upholding a jury's finding that the internet provider contributed to copyright infringement by declining to disconnect the accounts of customers known to engage in music piracy. A Virginia jury awarded Sony Music Entertainment and several fellow music publishers $1 billion in damages in 2019 after finding Cox deliberately opted to not terminate service to accounts associated with numerous reports of infringement.
While a three-judge appellate panel ordered a recalculation of damages for a separate reason, it unanimously upheld the jury's liability finding. Cox can be held responsible for contributing to its customers' infringement because it knew or was substantially certain that infringement was occurring yet decided to turn a blind eye, the panel held.
But Cox claims it cannot be held liable for simply failing to disconnect a customer's service. The Supreme Court has repeatedly held that contributory liability requires some form of affirmative conduct that furthers the infringing activity, it argues, but Sony and the other music publishers can't point to any action by Cox that fits that description. Cox requires customers to agree to not use its services for infringing activity and employs a multistep disciplinary system to deal with alleged infringement, it says.
Additionally, Cox contends the jury was given improper instructions on the standard for finding willfulness under the Copyright Act, which triggers enhanced damages. The Fourth Circuit ruled that a provider's mere knowledge that some customers were infringing is sufficient to find willfulness, but the provider argues that finding contradicts high court precedent and would unlawfully subject providers to liability for any wrong action taken by customers.
In backing Cox, the federal government adds that the accounts associated with the most infringing activity accusations were ones tied to apartment buildings, hospitals and universities with multiple users, making it hard for providers to pinpoint and reprimand individual offenders. Termination of services to those accounts cannot be the only way for Cox and other internet providers to avoid contributory liability because termination would adversely affect noninfringing customers as well, the government said.
The justices should build on rulings exempting social media companies from liability for terrorist groups' use of their platforms and gun manufacturers from responsibility for allegedly contributing to cartel violence in Mexico — and reiterate the principle that more than mere knowledge of customer misuse or plans to misuse a product or service is needed to hold a provider liable, the government said.
Sony and the other music publishers, however, counter that once a supplier learns that its product or service is being used for unlawful purposes, it isn't free to ignore that knowledge and continue with business as usual. Congress said as much in the Digital Millennium Copyright Act of 1998, which provides a so-called "safe harbor" from liability for internet providers who take steps to address alleged infringement, but doesn't completely absolve providers of all potential liability, the music publishers argue.
This case is different from prior ones involving social media companies and gun manufacturers because evidence shows Cox routinely ignored infringement reports and chose to continue providing service to and collect payments from infringing accounts with at least reckless disregard to copyright holders' rights, they said.
E. Joshua Rosenkranz, an Orrick Herrington & Sutcliffe LLP partner, will argue for Cox; Malcolm L. Stewart of the U.S. Solicitor General's Office will argue for the federal government in favor of Cox; and Clement & Murphy PLLC partner Paul D. Clement will argue for Sony.
The case is Cox Communications Inc. et al. v. Sony Music Entertainment et al., case number 24-171.
Persecution Determination Appeals
Also on Monday, the justices will consider if federal courts must defer to Board of Immigration Appeals determinations about whether asylum seekers faced persecution in their home countries.
El Salvador native Douglas Humberto Urias-Orellana, his wife Sayra Iliana Gamez-Mejia and their child have petitioned the Supreme Court to review the First Circuit's refusal to inspect a BIA finding that harassment the family faced back home didn't amount to persecution under the Immigration and Nationality Act.
Urias-Orellana and his family applied for asylum to avoid returning to El Salvador, where cartel members had allegedly threatened them repeatedly and even physically attacked Urias-Orellana.
An appellate panel found the family wasn't entitled to full review of the BIA's decision under circuit precedent that requires deference as long as the board's conclusion is supported by substantial evidence. In this case, the board reasonably concluded the cartel's prior threats and actions didn't qualify as persecution, and Urias-Orellana and his family presented no reason to disturb that finding, the panel held.
Urias-Orellana argues that a decision of whether specific facts amount to past persecution is not one of the four specific situations in which the INA instructs courts to defer to the BIA. The four scenarios listed in 8 U.S.C. Section 1251, including the board's "ultimate discretionary judgment whether to grant asylum," all involve purely factual questions, Urias-Orellana said. But what constitutes persecution is a mixed question of fact and law that federal courts are best equipped to decide.
Allowing federal courts to weigh in on what qualifies as persecution would also ensure a fair and consistent application of this specific legal standard nationwide, Urias-Orellana said.
The federal government, on the other hand, claims the INA makes clear that the question of an immigrant's eligibility for asylum is a factual one best left for immigration judges and the BIA to determine. Those decisions are akin to jury verdicts, which courts have long given deference to except in the most extreme situations.
And in 1996, when Congress adopted the INA's deference provision, there was a historical practice of courts giving significant deference to asylum eligibility determinations, the government said. The First Circuit's decision relied on the most natural reading of the INA, and the Supreme Court should adopt a similar interpretation, it added.
Latham & Watkins LLP associate Nicholas Rosellini will argue for Urias-Orellana, and Joshua Dos Santos, of the U.S. Solicitor General's Office, will argue for Bondi.
The case is Urias-Orellana et al. v. Bondi, case number 24-777.
State Subpoena Challenges
On Tuesday, the high court will debate whether subjects of state subpoenas must first pursue constitutional challenges of their enforcement in state court before potentially bringing claims in federal court.
First Choice Women's Resource Centers Inc., a nonprofit group of anti-abortion pregnancy centers, has asked the justices to reverse a Third Circuit ruling affirming the dismissal of its federal court First Amendment challenge to a subpoena issued by New Jersey Attorney General Matthew Platkin. The subpoena requests information about certain donors as well as First Choice's donation solicitation materials, which Platkin alleges might have misled donors about the services provided at the pregnancy centers.
A divided appellate panel upheld a New Jersey federal judge's finding that First Choice's federal pre-enforcement challenge, which the nonprofit filed under 42 U.S.C. Section 1983, wasn't ripe because a state court hadn't required it to comply with the demand. The nonprofit can still assert its constitutional challenge to the subpoena in state court proceedings, the panel held.
But First Choice argues the Third Circuit's decision creates a Catch-22 by requiring it to first challenge the subpoena in state court and then potentially be precluded from asserting constitutional challenges to it in federal court. Section 1983 doesn't allow for that, the nonprofit said. As long as a plaintiff can establish an Article III injury, they are allowed to bring a Section 1983 suit in federal court, First Choice added.
In this case, the nonprofit suffered an injury to its First Amendment right to associate the moment Platkin issued the subpoena and threatened to expose the nonprofits' private donors, and First Choice continues to suffer that injury every day the subpoena isn't enjoined, the nonprofit claims.
The federal government agrees, noting a state court's decision on First Choice's constitutional challenge to the subpoena would preclude federal courts from reviewing a dispute that they clearly have jurisdiction over. The Supreme Court has previously stated a plaintiff can file Section 1983 suits in federal court without first exhausting state law remedies, and the same rule should apply in this case, the government said. Platikins' issuance of the subpoena amounts to a challengeable state action, and First Choice doesn't have to wait to assert its legal rights until a state court orders compliance, it added.
Meanwhile, Platkin claims First Choice and the federal government are arguing the wrong issue. All parties in the case agree that if First Choice has an Article III injury, then Section 1983 allows it to file a pre-enforcement challenge to New Jersey's subpoena in federal court. But the nonprofit hasn't proven it is currently suffering an injury, he said.
The subpoena is non-self-executing and requires a court order to have any legal force, Platkin noted, which means First Choice is under no obligation to comply with the demand until a court order is issued — and a state court has so far declined to do that. The nonprofit also provided no evidence that its donors would be deterred from contributing to First Choice through other avenues not covered by the subpoenas' information requests, Platkin said.
Alliance Defending Freedom senior counsel Erin M. Hawley will argue for First Choice; Vivek Suri of the U.S. Solicitor General's Office will argue for the federal government in favor of First Choice; and Sundeep Iyer of the New Jersey Attorney General's Office will argue for Platkin.
The case is First Choice Women's Resource Centers Inc. v. Platkin, case number 24-781.
Prospective Constitutional Challenges
On Wednesday, the justices will consider whether a defendant who was previously convicted of a crime can file a civil rights suit seeking prospective relief from potential future convictions.
Mississippi man Gabriel Olivier has petitioned the Supreme Court to reverse a Fifth Circuit decision dismissing his 42 U.S.C. Section 1983 lawsuit that challenged the constitutionality of a city of Brandon, Mississippi, ordinance that bars protests and demonstrations near a public amphitheater in the time surrounding events.
Olivier, a street preacher, was convicted, fined and sentenced to one year of probation for violating the order in 2021 and filed suit shortly after, claiming the ordinance violated the First and 14th amendments while seeking injunctive relief from potential future charges related to violations of it.
A three-judge panel affirmed a summary judgment ruling in the city's favor, finding Olivier's lawsuit was prohibited under the Supreme Court's 1994 decision in Heck v. Humphrey, which held defendants cannot seek damages for an allegedly unconstitutional conviction or sentence that hasn't been overturned. Olivier's lawsuit effectively sought to challenge his 2021 conviction and sentence because any success he had in securing future relief would call his prior conviction into question, the panel held.
Olivier contends the Fifth Circuit mischaracterized his lawsuit. He said he is seeking prospective relief only to prevent future convictions, which is a type of Section 1983 challenge that courts routinely adjudicate. The question that courts must ask under Heck is whether the relief requested in the lawsuit would undermine a prior conviction. In this case, Olivier argues it wouldn't. A judgment in his favor would only prevent Brandon, Mississippi, from charging Olivier with future violations of the protest ordinance and would have no effect on his prior conviction.
Additionally, Heck's ruling was meant to close a loophole that would have allowed defendants to file Section 1983 claims instead of pursuing habeas proceedings to challenge their convictions and sentences. But since Olivier was never in custody, he never had access to habeas relief, so that isn't an issue in this case, he said.
The federal government supports most of Olivier's argument and has asked the Supreme Court to vacate the Fifth Circuit's decision. Any other plaintiff could file an identical Section 1983 suit against the city ordinance and receive the same prospective relief finding the law unconstitutional, so barring Olivier from pursuing his lawsuit would have no meaningful impact, the government said. Heck also only applies to suits seeking damages for prior convictions, which Olivier has never requested, it added. However, the government urged the justices not to reach the habeas issue in this case.
The city of Brandon counters that the true purpose of Olivier's lawsuit is to challenge his prior conviction and that it is therefore barred under Heck. Olivier filed his constitutional challenge to the city's ordinance while still on probation — a sentence that would have been cut short if the federal court had granted Olivier's request for injunctive or declaratory relief, the city claims. The district court and Fifth Circuit properly considered what the implications of Olivier's legal success would be when deciding that he couldn't pursue his lawsuit, and the Supreme Court should uphold that ruling, the city said.
Gibson Dunn & Crutcher LLP partner Allyson N. Ho will argue for Olivier; Ashley Robertson, of the U.S. Solicitor General's Office, will argue for the federal government in favor of vacatur; and Phelps Dunbar LLP partner G. Todd Butler will argue for the city of Brandon.
The case is Olivier v. City of Brandon et al., case number 24-993.
--Editing by Philip Shea.
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