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Each month, a panel of constitutional experts convenes to discuss the Court’s upcoming docket sitting by sitting. The cases covered in this preview are listed below. Murthy v. Missouri (March 18) - Whether the Supreme Court should stay the injunction of the U.S. District Court for the Western District of Louisiana restricting federal officials’ and employees’ speech concerning content moderation on social media platforms. NRA v. Vullo (March 18) - Whether the First Amendment allows a government regulator to threaten regulated entities with adverse regulatory actions if they do business with a controversial speaker, as a consequence of (a) the government’s own hostility to the speaker’s viewpoint or (b) a perceived “general backlash” against the speaker’s advocacy. Diaz v. United States (March 19) - Criminal Law & Procedure; Whether in a prosecution for drug trafficking — where an element of the offense is that the defendant knew she was carrying illegal drugs — Federal Rule of Evidence 704(b) permits a governmental expert witness to testify that most couriers know they are carrying drugs and that drug-trafficking organizations do not entrust large quantities of drugs to unknowing transporters. Truck Insurance Exchange v. Kaiser Gypsum Company, Inc. (March 19) - Bankruptcy law - This case addresses whether an insurer with responsibility for a bankruptcy claim qualifies as a "party in interest" able to object to a plan of reorganization under Chapter 11 of the Bankruptcy Code. It touches on the rights and roles of insurance companies within the framework of bankruptcy proceedings. Gonzalez v. Trevino (March 20) - Constitutional Law, First Amendment - It explores the standards required for a plaintiff alleging an arrest in retaliation for speech protected by the First Amendment, focusing on what evidence must be shown to prove such a claim, especially in light of exceptions outlined in precedent cases. Texas v. New Mexico and Colorado (March 20) - Environmental Law - This dispute involves the apportionment of the waters of the Rio Grande among the states and the role of the federal government in such agreements. It represents the latest chapter in a long-running legal battle over water rights and usage. Becerra v. San Carlos Apache Tribe (March 25) - Federal Indian Law, Medical Law - The question is whether Native American tribes that manage their own healthcare programs are entitled to receive funds from the Indian Health Service to cover costs associated with services that are covered by insurance. This case examines the intersection of tribal sovereignty, healthcare, and federal funding obligations. Harrow v. Department of Defense (March 25) - Ad Law - It questions whether the 60-day deadline for a federal employee to petition the U.S. Court of Appeals for the Federal Circuit to review a final decision of the Merit Systems Protection Board is jurisdictional, impacting the rights of federal employees in the review process. Food and Drug Administration v. Alliance For Hippocratic Medicine (March 26) - Ad Law - It centers on the FDA’s approval process and actions to increase access to mifepristone, a drug used in medication abortions. The case challenges the FDA's decisions on drug safety and accessibility, testing the limits of agency authority and judicial review. Erlinger v. United States (March 27) - Criminal Law - The question is whether, for the purposes of imposing an enhanced sentence under the ACCA, it should be a jury or a judge who decides if the defendant’s previous convictions occurred on different occasions. Connelly v. Internal Revenue Service (March 27) - Tax Law - The case examines whether the proceeds of a life insurance policy, taken out by a closely held corporation on a shareholder to facilitate the redemption of the shareholder’s stock, should be considered a corporate asset when calculating the value of the shareholder’s shares. Featuring: Robert Corn-Revere, Chief Counsel, FIRE Tony Francois, Partner, Briscoe Ivester & Bazel Eli Nachmany, Associate, Covington & Burling LLP Brett Nolan, Senior Attorney, Institute for Free Speech Jennifer Weddle, Shareholder, Greenberg Traurig Moderator: Michael Francisco, Partner, McGuireWoods

Professor Zack De Piero was an English professor at the Pennsylvania State University Abington campus before resigning and filing a lawsuit against the University in 2023 alleging that administrators and faculty members discriminated against him because of the color of his skin. Professor De Piero claims the University's diversity, equity, and inclusion (DEI) initiatives created a hostile work environment with a race-essentialism focus. Professor De Piero was required to attend professional development meetings to view videos such as “White Teachers Are a Problem”, and was directed to “assure that all students see that white supremacy manifests itself in language and in writing pedagogy.” He took the prescribed course of action and filed a bias report, to no avail. Professor De Piero has now filed suit against Penn State in federal court, alleging violations of his civil rights under federal and Pennsylvania law. Penn State initially argued that De Piero's disparate treatment claim must be dismissed because he resigned from his job at Penn State, and, thus, did not suffer an adverse employment action. On January 11, 2024, the United States District Court for the Eastern District of Pennsylvania denied Penn State’s motion to dismiss the discrimination claim against it by Professor De Piero. The case has now entered the discovery phase. This was a Litigation Update on De Piero v. Pennsylvania State University with Michael Allen, one of Professor De Piero's attorneys and Partner at Allen Harris Law, and moderator William Trachman, General Counsel at the Mountain States Legal Foundation.

Academic freedom and free speech at colleges and universities are at the center of ongoing litigation in Gerber v. Ohio Northern University. In April 2023, Dr. Scott Gerber was abruptly removed from his law class by school security and brought to the dean's office. Dr. Gerber was then told by Dean Charles H. Rose III that he must resign or face termination proceedings. During his time teaching, he had been a long-standing critic of the University's use of race, sex, and ethnicity factors in hiring and student admissions. He refused to resign and the University soon commenced termination proceedings against him. Dr. Gerber was not told what he was accused of doing, despite his contractual right as a tenured faculty member to be informed with “reasonable particularity” of the accusations against him. Hardin County, Ohio Court of Common Pleas issued a temporary restraining order against ONU, requiring them to notify Dr. Gerber of what he was alleged to have done. At the hearing, the University allegedly failed to give Dr. Gerber a fair hearing as they brought forward new accusations and denied Dr. Gerber his contractual right to interview witnesses. Dr. Gerber, who is represented by the America First Legal Foundation, has now filed suit against Ohio Northern University to restore his reputation, regain his employment, and secure compensation for the actions of the University. This was a Litigation Update on Gerber v. Ohio Northern University with Ben Flowers, one of Dr. Gerber's attorneys and a Partner at Ashbrook Byrne Kresge, moderated by Dan Morenoff, Executive Director at American Civil Rights Project.

On March 18, 2024 the Supreme Court will hear two cases related to alleged “jawboning” -Murthy v. Missouri & NRA v. Vullo. Murthy v. Missouri, originally filed as Missouri v. Biden, concerns whether federal government officials had violated the First Amendment by "coercing" or "significantly encouraging" social media companies to remove or demote particular content from their platforms. This content spanned various topics, including the origin of the COVID-19 pandemic, the efficacy of masks and vaccines, and the integrity of the 2020 presidential election, among others. National Rifle Association of America v. Vullo raises the question of whether the First Amendment allows a government regulator to threaten regulated entities with adverse regulatory actions if they do business with a controversial speaker, as a consequence of (a) the government’s own hostility to the speaker’s viewpoint or (b) a perceived “general backlash” against the speaker’s advocacy. This lawsuit, initiated by the NRA in response to what it perceives as targeted actions by Vullo to undermine its financial support structure, argues that these measures amount to unconstitutional viewpoint discrimination, effectively punishing the NRA for its protected speech. Join us for a conversation on the right previewing these cases and the issues at play. Featuring: Robert Alt, President & CEO, The Buckeye Institute Will Duffield, Policy Analyst, Cato Institute [Moderator] Casey Mattox, Vice President for Legal and Judicial Strategy, Americans for Prosperity

Artificial intelligence is the most important technological tool being developed today, but the use of preexisting copyrighted works to train these AI systems is deeply controversial. At the end of 2023 the New York Times sued OpenAI and Microsoft, alleging that OpenAI's use of articles from the New York Times to train their ChatGPT large language model constitutes copyright infringement. An answer is due at the end of February, and it's expected the case will revolve on the question of whether the use of the copyrighted content of the Times was a fair use. The fair use analysis will likely turn on whether the use of copyrighted content to train a AI system "transforms" the work in a way which makes the use fair. The Supreme Court has spoken on this question twice recently, holding that Google's use of parts of Oracle's Java programming language to build the Android operating system was transformative, but that the licensing of a Andy Warhol work based on a photograph by Lynn Goldsmith was not transformative of Goldsmith's work. Also important and perhaps most on-point is a decision of the Ninth Circuit Court of Appeals that Google's Image Search system is transformative of the photographs it indexes and displays as thumbnails. To help understand this case Professors Charles Duan from the American University Washington College of Law and Zvi Rosen of the Simmons School of Law at Southern Illinois University was joined by Steven Tepp of Sentinel Worldwide, who is also a Lecturer at the George Washington University School of Law and formerly of the U.S. Copyright Office. John Moran of Holland & Knight moderated the panel and provided additional perspective.

Speech First, Inc. v. Sands concerns a Virginia Polytechnic Institute and State University (Virginia Tech) policy that created a bias response team and protocol where students could report bias incidents. Under this policy, reported incidents would be reviewed and possibly reported to the administration for a formal reprimand. In 2021, Speech First, Inc., a group that focuses on students' freedom of speech on university campuses, filed suit against Virginia Tech on behalf of several students for chilling their right to speech through the bias incident policies. The district court hearing the case ruled in favor of Virginia Tech finding that the Bias Incident policy didn’t specifically outline any particular speech that was chilled for the students being represented and thus the policy wasn’t found to chill speech. In 2022, the Fourth Circuit affirmed the lower court's decision. The Supreme Court granted certiorari in the case, gave judgment with respect to the Bias Policy claims vacated, and remanded the case to the 4th Circuit with instructions to dismiss those claims as moot under United States v. Munsingwear, Inc. Multiple Justices, including Justices Thomas and Alito, filed dissents. Join us for a litigation update on this important case in light of those developments. Featuring: Abigail Smith, Amicus Attorney, The Foundation for Individual Rights and Expression (Moderator) Tyson Langhofer, Senior Counsel, Director of Center for Academic Freedom, Alliance Defending Freedom

In Better Money: Gold, Fiat, Or Bitcoin?, monetary expert Lawrence H. White delves into the timely debate surrounding alternative currencies amidst the backdrop of constant inflation in the fiat currency world. Better Money explains and analyzes gold, fiat dollars, and Bitcoin standards to evaluate their relative merits and capabilities as currencies. It addresses common misunderstandings of the gold standard and Bitcoin, and scrutinizes the evolution of currency, particularly the interplay between market and government roles. White provides provocative analysis of which standard might ultimately provide better money, and argues that we need a market competition among them. Please join us as Professor Lawrence White joins discussants Alexandra Gaiser and Bert Ely, and moderator Alex Pollock to discuss Better Money. Featuring: Prof. Lawrence H. White, George Mason University Alexandra Gaiser, General Counsel, Strive Bert Ely, Principal, Ely & Company, Inc. Moderator: Alex J. Pollock, Senior Fellow, Mises Institute

On February 8, 2024, the Supreme Court heard Oral Argument in Trump v. Anderson. The Court considered whether the Colorado Supreme Court erred in ordering former President Donald Trump excluded from the 2024 presidential primary ballot. Legal questions involved in the case include whether Section 3 of the Fourteenth Amendment is "self-executing" or requires an additional act of Congress, whether the events of January 6, 2021, constitute an insurrection, and if so whether Donald Trump participated in that insurrection, and whether the President is an "officer of the United States" as meant by Section 3. On March 4, 2024 the Court issued a 9-0 decision overturning the Colorado Supreme Court’s December ruling, holding that President Trump is not precluded from appearing on Colorado’s presidential primary ballot. Featuring: Prof. Derek T. Muller, Professor of Law, Notre Dame Law School

On February 21, 2024, the Supreme Court will hear oral argument in Ohio v. Environmental Protection Agency. The following questions are presented – (1) Whether the court should stay the Environmental Protection Agency’s federal emission reductions rule, the Good Neighbor Plan; and (2) whether the emissions controls imposed by the rule are reasonable regardless of the number of states subject to the rule. Please join our panel of experts as they break down the case and its developments after oral argument. Featuring: Megan Herzog, Partner, Donahue & Goldberg LLP Matt Kuhn, Solicitor General, Kentucky Viktoria Seale, Regulatory Affairs Director, National Rural Electric Cooperative Association Matthew Z. Leopold, Partner, Hunton Andrews Kurth

Garland v. Cargill concerns whether bump stocks are considered "machineguns" as defined by Title 26 of the United States Code. Impacting the realms of both Second Amendment and Administrative Law, the case raises questions concerning the role of lenity, the applicability of the Chevron Doctrine, and the nature of the ATF’s authority. Bump stocks are devices attached to semi-automatic firearms to increase the rate of fire. In 2019, the ATF issued a rule that bumpstocks themselves were machineguns, and thus subject to the rules of Title 26, which marked a significant shift in federal policy. Michael Cargill, the owner of Central Texas Gun Works, challenged this reclassification, arguing it was an unconstitutional overreach by the ATF and the Department of Justice (DOJ). The Fifth Circuit of Appeals ruled in his favor. A significant circuit split on this issue now exists, with the Fifth and Sixth Circuits holding that bump stocks are not machineguns, while the D.C. and Tenth Circuits have held that they are. The oral argument in Cargill is set to be heard before the Supreme Court on February 28, 2024. Join us the next day as we break down and analyze how oral argument went before the Court. Featuring: Stephen Halbrook, Senior Fellow, Independent Institute (Moderator) Robert Leider, Assistant Professor of Law, George Mason University, Antonin Scalia Law School