Relist Watch

John Elwood hastily reviews Tuesday’s relists.

It’s a perfect storm: A week already shortened by Veterans Day made shorter still by an unprecedented gathering of high–functioning introverts. So to make sure we have this out well enough ahead of possible Friday grants while still attending the events, we’ll keep this short too.

Six new relists this week. But I want to flag just two related cases for you: Competitive Enterprise Institute v. Mann, 18-1477, and National Review, Inc. v. Mann, 18-1451. Because there aren’t enough high–stakes cases before the Supreme Court this term, the justices are now considering whether to take a case involving climate change — and free speech. As I discovered simply trying to track down replacements for broken hyperlinks in the decision under review, opinions in this area range from a quaintly old-fashioned “delete your account!” to statements so profane I need administrative privileges just to view them on a firm-owned computer. So the odds are against my describing this case without inspiring rage. But here goes.

Respondent Michael Mann is a professor of meteorology at Penn State University. In the late 1990s, he co-authored two papers concluding that global temperatures had risen sharply during the 20th century because of increasing carbon-dioxide levels in the atmosphere. Because of its shape, the graph depicting his findings came to be known as the “hockey stick” graph. In 2001, the Intergovernmental Panel on Climate Change included the graph in its Third Assessment Report. Fast forward to 2009, when a large number of private emails among climate scientists, including Mann, were leaked to the public, resulting in allegations that the scientists were manipulating the numbers to support a grave view of climate change. In 2012, Rand Simberg of the Competitive Enterprise Institute revisited those criticisms in a website post that compared Mann to another famous Penn State faculty member, former football coach Jerry Sandusky, who had recently been convicted of sexual misconduct, and suggesting that Penn State had likewise whitewashed Mann’s misconduct. Soon afterward, National Review published a post by columnist Mark Steyn linking to and quoting Simberg’s commentary.

Mann sued in D.C. Superior Court, alleging that Simberg’s and Steyn’s commentary defamed him. CEI and National Review argued that the columns involved nonactionable statements of opinion and moved to dismiss for failure to state a claim under the D.C. Anti-Strategic Lawsuits Against Public Participation Act. That law, which was adopted to stave off lawsuits targeting speech on matters of public concern, requires dismissal unless the plaintiff shows he is “likely to succeed on the merits.” The D.C. Superior Court judge concluded that the columns were not limited to opinion and that the claims of data manipulation involved an interpretation of facts. CEI and National Review appealed, but the D.C. Court of Appeals (no, not the U.S. Court of Appeals for the District of Columbia Circuit) affirmed. The court reasoned, in part, as follows:

To the extent statements in appellants’ articles take issue with the soundness of Dr. Mann’s methodology and conclusions — i.e., with ideas in a scientific or political debate — they are protected by the First Amendment. But defamatory statements that are personal attacks on an individual’s honesty and integrity and assert or imply as fact that Dr. Mann engaged in professional misconduct and deceit to manufacture the results he desired, if false, do not enjoy constitutional protection and may be actionable.

The court held that the motions to dismiss were properly denied.

CEI and National Review seek review at the Supreme Court, emphasizing the First Amendment importance of expressing opinions on a matter of obvious public interest, and in particular the importance of ensuring that the First Amendment standards employed in the nation’s capital are correct. Complicating everything is the fact that the D.C. Court of Appeals is the District of Columbia’s highest “local” court, akin to a state supreme court. The statute providing for Supreme Court review of decisions of “the highest court[s] of a state” only extends to “[f]inal judgments.” Because this involves an interlocutory appeal of the denial of a motion to dismiss, the cases raise the question whether this is one of the categories of interlocutory orders the Supreme Court has recognized to be “final decisions” subject to immediate review under Cox Broadcasting Corp v. Cohn. The court rescheduled these cases three times before discussing them at conference for the first time last week, so it’s clear they have generated serious interest. But rescheduled cases on the whole have not fared well in recent terms.

I’m going to leave you to Relist Watch Select^TM for the rest of this week’s relists, other than to note that they involve some fascinating issues: a First Amendment challenge to a Delaware constitutional provision requiring political balance on that state’s courts; whether rape in the military can be an offense “punishable by death,” exempting it from the statute of limitations, even if the Supreme Court has held that the death penalty can’t be imposed for it; and yet another Armed Career Criminal Act case. Until next time!

New Relists

Competitive Enterprise Institute v. Mann, 18-1477
Issues: (1) Whether the First Amendment permits defamation liability for subjective commentary on true facts concerning a matter of public concern; and (2) whether the determination of whether a challenged statement contains a provably false factual connotation is a question of law for the court or a question of fact for the jury.
(rescheduled before the October 11, October 18 and November 1 conferences; relisted after the November 8 conference)

National Review, Inc. v. Mann, 18-1451
Issues: (1) Whether the question of whether a statement contains a “provably false” factual connotation is a question of law for the court (as most federal circuit courts hold), or is a question of fact for the jury when the statement is ambiguous (as many state high courts hold); and (2) whether the First Amendment permits defamation liability for expressing a subjective opinion about a matter of scientific or political controversy, such as characterizing a statistical model about climate change as “deceptive” and calling its creation a form of “scientific misconduct.”
(rescheduled before the October 11, October 18 and November 1 conferences; relisted after the November 8 conference)

United States v. Briggs, 19-108
Issue: Whether the U.S. Court of Appeals for the Armed Forces erred in concluding – contrary to its own longstanding precedent – that the Uniform Code of Military Justice allows prosecution of a rape that occurred between 1986 and 2006 only if it was discovered and charged within five years.
(relisted after the November 8 conference)

United States v. Collins, 19-184
Issue: Whether the U.S. Court of Appeals for the Armed Forces erred in concluding – contrary to its own longstanding precedent – that the Uniform Code of Military Justice allows prosecution of a rape that occurred between 1986 and 2006 only if it was discovered and charged within five years.
(relisted after the November 8 conference)

Carney v. Adams, 19-309
Issues: (1) Whether the First Amendment invalidates a longstanding state constitutional provision that limits judges affiliated with any one political party to no more than a “bare majority” on the state’s three highest courts, with the other seats reserved for judges affiliated with the “other major political party”; and (2) whether the U.S. Court of Appeals for the 3rd Circuit erred in holding that a provision of the Delaware Constitution requiring that no more than a “bare majority” of three of the state courts may be made up of judges affiliated with any one political party is not severable from a provision that judges who are not members of the majority party on those courts must be members of the other “major political party,” when the former requirement existed for more than 50 years without the latter, and the former requirement, without the latter, continues to govern appointments to two other courts.
(relisted after the November 8 conference)

Walker v. United States, 19-373
Issue: Whether a criminal offense that can be committed with a mens rea of recklessness can qualify as a “violent felony” under the Armed Career Criminal Act.
(relisted after the November 8 conference)

Returning Relists

Gundy v. United States, 17-6086
Issue: Whether the Sex Offender Registration and Notification Act’s delegation to the Attorney General in 34 U.S.C. § 20913(d) (formerly 42 U.S.C. § 16913(d)) violates the constitutional nondelegation doctrine.
(relisted after the October 1, October 11, October 18, November 1 and November 8 conferences)

Paul v. United States, 17-8830
Issue: Whether the Sex Offender Registration and Notification Act’s delegation to the Attorney General in 34 U.S.C. § 20913(d) (formerly 42 U.S.C. § 16913(d)) violates the constitutional nondelegation doctrine.
(relisted after the September 24, 2018, June 27, 2019, October 18, 2019, November 1, 2019, and November 8, 2019, conferences)

Caldwell v. United States, 18-6852
Issue: Whether the Sex Offender Registration and Notification Act’s delegation to the Attorney General in 34 U.S.C. § 20913(d) (formerly 42 U.S.C. § 16913(d)) violates the constitutional nondelegation doctrine.
(relisted after the February 15, June 27, October 18, November 1 and November 8 conferences)

Terry v. Oklahoma, 18-8801
Issue: Whether the boundaries established in the Treaty of February 23, 1867, for the eight tribes within the former Indian Territory of northeastern Oklahoma constitute an “Indian reservation” today under 18 U.S.C § 1151(a).
(relisted after the October 1, October 11, October 18, November 1 and November 8 conferences)

Isom v. Arkansas, 18-9517
Issue: Whether Sam Pope and Kenneth Isom’s significant adversarial history created an unconstitutional risk of bias under the due process clause when Pope later sat as the trial judge in Isom’s unrelated coram nobis hearing.
(relisted after the October 1, October 11, October 18, November 1 and November 8 conferences)

McGirt v. Oklahoma, 18-9526
Issue: Whether the prosecution of an enrolled member of the Creek Tribe for crimes committed within the historical Creek boundaries is subject to exclusive federal jurisdiction.
(relisted after the October 1, October 11, October 18, November 1 and November 8 conferences)

Peithman v. United States, 19-16
[Disclosure: Arnold & Porter Kaye Scholer LLP, whose attorneys contribute to this blog in various capacities, is among the counsel to an amicus in this case.]
Issue: Whether 18 U.S.C. § 981(a)(1)(C) authorizes forfeiture imposed jointly and severally among co-conspirators, as the U.S. Courts of Appeals for the 6th and 8th Circuits have held, or whether such joint and several liability is foreclosed under the reasoning of Honeycutt v. United States, as the U.S. Court of Appeals for the 3rd Circuit has held.
(relisted after the October 11, October 18, November 1 and November 8 conferences)

Google LLC v. Oracle America, Inc., 18-956
[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in this case.]
Issues: (1) Whether copyright protection extends to a software interface; and (2) whether, as the jury found, the petitioner’s use of a software interface in the context of creating a new computer program constitutes fair use. CVSG: 09/27/2019.
(relisted after the November 1 and November 8 conferences)

Thompson v. Hebdon, 19-122
Issue: Whether Alaska’s $500 individual-to-candidate and individual-to-group contribution limits violate the First Amendment.
(relisted after the November 1 and November 8 conferences)