Defendants Google and YouTube submitted as supplemental authority the U.S. Supreme Court’s Oct. 20 order granting the government’s cert petition on the social media injunction entered in Missouri v. Biden and staying the injunction pending disposition of that petition (see 2310210001), said their filing Tuesday (docket 3:23-cv-03880) in U.S. District Court for Northern California in San Francisco. Plaintiff Robert F. Kennedy Jr. seeks a preliminary injunction enjoining Google and YouTube from removing his COVID-19 videos on grounds that they violate YouTube’s medical misinformation policies (see 2310160014). Kennedy cited the Missouri v. Biden injunction in his motion for the injunction against Google and YouTube, plus in his reply in support of that motion, and Google and YouTube submitted the SCOTUS order in support of their opposition to RFK Jr.'s injunction.

The opening brief on the merits is due Nov. 20 at the U.S. Supreme Court from a second group of fishing-company petitioners seeking to overturn the Chevron doctrine, said a text-only docket entry Wednesday (docket 22-1219). The fishing companies object to the Commerce Department's requirement they pay the costs of carrying federal inspectors onboard their vessels. SCOTUS granted the cert petition Oct. 13 from Relentless, Huntress and Seafreeze Fleet (see 2310130064). The Commerce Department’s respondents’ brief on the merits is due Dec. 15, and the petitioners’ reply brief is due Jan. 5, said the docket entry. SCOTUS directed the clerk to establish a briefing schedule that will allow the Relentless case to be argued “in tandem” with Loper Bright Enterprises v. Raimondo (docket 22-451) in the January argument session. The Loper Bright petitioners also ask that Chevron deference be overruled.

The government’s effort to demonstrate Chevron’s “ubiquity and importance” only highlights that the U.S. Supreme Court last used Chevron to decide a case in 2016, said petitioners Loper Bright Enterprises in their reply brief Monday (docket 22-451) in support of overruling Chevron. The Supreme Court’s lack of activity on the doctrine “is not for lack of opportunities,” said the reply brief. Yet for nearly a decade, SCOTUS has instead done what Article III and the Administrative Procedure Act command, “and simply interpreted the disputed statute,” it said. The question is less whether SCOTUS should overrule Chevron, “and more whether it should let lower courts and citizens in on the news,” said the reply brief. The reality is that Chevron “has already proven itself unworkable, and its corrosive effects on our separation of powers have lingered long enough,” it said. The government’s pleas to retain this “misguided and reliance-destroying doctrine fall far short of the mark,” it said. The government “stumbles out of the gate,” claiming Chevron “enjoys statutory stare decisis” (to stand by things decided), said the reply brief. “In reality, Chevron’s interpretive methodology has little (if any) precedential force, and the government fails to demonstrate otherwise,” it said. Even if more traditional stare decisis factors were at play, “the case for overruling Chevron would be overwhelming,” it said. The government “barely defends” the doctrine as a constitutional and statutory matter and insists it's “rooted in historical tradition only by distorting history and ignoring what Chevron actually requires,” said the reply brief. “All roads thus lead to the conclusion” that SCOTUS should overrule Chevron, it said. But if nothing else, SCOTUS should clarify “that statutory silence does not trigger Chevron,” it said.

Epic Games seeks a 30-day deadline extension, to Dec. 1, to respond to Apple’s Sept. 28 U.S. Supreme Court cert petition challenging a federal court’s ability to impose injunctive relief for a wide swath of nonparties instead of a single named plaintiff, wrote Cravath’s Yonatan Even in a letter Saturday (docket 23-344) to the SCOTUS clerk. The delay is needed “due to the press of other matters,” said Even. Apple is seeking to set aside the 9th Circuit Court of Appeals’ affirmation of the district court’s injunction barring Apple from enforcing its anti-steering rules against U.S. iOS app developers (see 2310030002).

Oral argument in the U.S. Supreme Court's administrative law case SEC v. Jarkesy will be Nov. 29, according to an update to the court’s calendar Thursday. The case has implications for the enforcement power of federal agencies that use administrative law judges, such as the FCC (see 2211030063). The proceeding stems from a 2013 SEC enforcement action against George Jarkesy and investment firm Patriot28 over securities violations by their hedge funds. The SEC ruled against Jarkesy, but in 2022 the 5th U.S. Circuit Court of Appeals said it was unconstitutional for Congress to give the SEC discretion over whether enforcement matters are adjudicated in front of its ALJ, imposing civil penalties in agency hearings with no jury violated the 7th Amendment, and ALJs are unconstitutionally difficult for the president to remove. In a brief Wednesday, Jarkesy argued the SEC violated the constitutional right to a jury trial by adjudicating fraud cases in its in-house courts. The SEC argued precedent allows those cases to be tried without juries outside the federal courts because its fraud enforcement involves the government suing violators on behalf of the public. This view of public rights doctrine ignores historical precedent stretching back to English common law, said Jarkesy Wednesday. Since SEC fraud cases like Jarkesy’s target deals reached between two private entities, without the government as a party, they involve private rather than public rights, and require a jury, said the brief. By delegating authority to the SEC to decide if fraud cases would be tried in-house in front of an ALJ or in the federal courts, Congress violated the Constitution, the brief said. Agency ALJs also violate the Constitution because their tenure protections mean they can’t be directly removed by the president, the brief said. Jarkesy also argued SCOTUS can’t separate the ALJ protections issue from the rest of the case, or remand the matter to the SEC. “The Court cannot fix the violation by severing the offending for-cause protection, because that protection was a material element of Congress’ statutory scheme,” said the brief. “The reviewing court’s decision is the final word.”

Opening briefs from NetChoice and the Computer & Communications Industry Association are due Nov. 30 at the U.S. Supreme Court in their constitutionality challenges of the Florida (docket 22-227) and Texas (docket 22-555) social media laws, said a text-only scheduling order Tuesday. The Florida and Texas response briefs are due Jan. 16, said the order. Amicus briefs in support of NetChoice and CCIA are due Dec. 7, and amicus briefs in support of the states are due Jan. 23, said the order. SCOTUS granted the cert petitions of NetChoice and CCIA Sept. 29 (see 2309290020). They argue the Florida and Texas statutes are unconstitutional under the First Amendment, and they violate the commerce clause, the equal protection and due process clauses of the 14th Amendment, and are preempted by Section 230.

The U.S. Supreme Court should “clarify the law” on direct infringement of copyrighted works, said Seth Cooper, Free State Foundation senior fellow and director-policy studies, in an analysis Wednesday. SCOTUS will consider at its Sept. 26 conference whether to take up ABKCO Music v. Sagan (docket 22-1053), a case in which a lower court “distorted the law regarding direct copyright infringement,” said Cooper. Section 106 of the Copyright Act “secures the exclusive rights of a copyright owner to authorize the copying and distribution of creative works,” he said. But the 2nd U.S. Circuit Court of Appeals “determined that a person who improperly authorizes someone else to make and distribute copies of a creative work” isn’t liable for direct infringement “if the improper authorizing person did not actually ‘press the button’ to make the copies,” he said. If left standing, the lower court's decision “would undermine the ability of copyright owners to enforce their rights in many instances,” he said. SCOTUS “should grant review and vindicate the correct understanding of direct copyright infringement,” he said.

Internet industry groups renewed their call for U.S. Supreme Court review of two state social media laws. In supplemental briefs Wednesday, NetChoice and the Computer & Communications Industry Association (CCIA) agreed with the U.S. solicitor general that SCOTUS should review Texas (22-555) and Florida (22-393) cases but disagreed that the court shouldn’t review the state laws’ disclosure requirements. The court said Wednesday it distributed the cases for a Sept. 26 conference. “United States confirms that this case is exceptionally important and warrants the Court’s review,” the petitioners said in their Texas brief. They agreed with the solicitor general that SCOTUS should reverse the 5th U.S. Circuit Court of Appeals upholding the Texas law’s content-moderation restrictions. But the Supreme Court shouldn’t “artificially cabin its review” by skipping the disclosure requirements, they said. The U.S. can’t “deny that which First Amendment standard applies to governmental requirements to disclose editorial policies is increasingly recurring and important,” petitioners added. In the Florida case, NetChoice and CCIA said the U.S. “seeks to artificially limit” SCOTUS review to provisions invalidated by the 11th U.S. Circuit Court of Appeals, even though all the Florida law’s “provisions work hand-in-glove to punish a select handful of online services that the state indisputably disfavors.” Texas filed a supplemental brief Monday (see 2308290051).

The U.S. government misapplies U.S. Supreme Court "precedents and offers a view of the First Amendment that would imperil some of its own regulatory programs,” but the solicitor general is right that the Supreme Court should grant certiorari in both Texas and Florida social media law cases, Texas said in a supplemental brief Monday (case 22-555). The U.S. position (see 2308150010) would leave state and federal governments "with little, if any, guidance on how to draw the line between regulable and non-regulable activities of social-media platforms,” wrote the state’s provisional attorney general Angela Colmenero (R). "By characterizing the central feature of the platforms -- hosting third-party content -- as speech, the federal government all but immunizes social-media companies from any substantive regulation. The First Amendment does not mandate such a result.” Despite that objection, Colmenero said the solicitor general's brief confirms "these cases present the exceptionally important question of whether the First Amendment precludes the government from requiring large social-media platforms to provide equal, non-discriminatory access to the public regardless of viewpoint.” Texas doesn't object to the solicitor general's recommendation to deny cert on the state law's disclosure requirements, she added.

U.S. Supreme Court Justice Brett Kavanaugh granted a Consumers Research request to extend until Oct. 27 the deadline to file a petition for writ of certiorari Tuesday (see 2307310061). The group sought the extension for its challenge of the 6th U.S. Circuit Court of Appeals decision upholding the FCC's USF 2021 Q4 contribution factor. Kavanaugh is the justice assigned to the 6th Circuit.