Supreme Court

Net neutrality advocates won’t appeal loss, say they don’t trust Supreme Court

Net Neutrality, Policy, Supreme Court / Beth Washington / August 9, 2025

Court ruled broadband isn’t telecommunications

Although the Obama-era FCC won on this point in the District of Columbia Circuit in 2016, a Supreme Court ruling in 2024 gave courts more power to block rules when judges disagree with an agency’s interpretation of federal statutes. Judges at the 6th Circuit subsequently decided that broadband must be classified as an “information service” under US law.

“The 6th Circuit’s decision earlier this year was spectacularly wrong, and the protections it struck down are extremely important. But rather than attempting to overcome an agency that changed hands—and a Supreme Court majority that cares very little about the rule of law—we’ll keep fighting for Internet affordability and openness in Congress, state legislatures and other court proceedings nationwide,” Wood said.

Besides Free Press, groups announcing that they won’t appeal are the Benton Institute for Broadband & Society, New America’s Open Technology Institute, and Public Knowledge.

“Though the 6th Circuit erred egregiously in its decision to overturn the FCC’s 2024 Open Internet order, there are other ways we can advance our fight for consumer protections and ISP accountability than petitioning the Supreme Court to review this case—and, given the current legal landscape, we believe our efforts will be more effective if focused on those alternatives,” said Raza Panjwani, senior policy counsel at the Open Technology Institute.

Net neutrality could still reach the Supreme Court in another case. Andrew Jay Schwartzman, senior counselor of the Benton Institute for Broadband & Society, said that “the 6th Circuit decision makes bad policy as well as bad law. Because it is at odds with the holdings of two other circuits, we expect to take the issue to the Supreme Court in a future case.”

California still enforces a net neutrality law. ISPs tried to get that law struck down, but courts decided that states could regulate net neutrality when the FCC isn’t doing so.

Net neutrality advocates won’t appeal loss, say they don’t trust Supreme Court Read More »

Analysis: The Trump administration’s assault on climate action

clean air act, climate change, Earth science, EPA, global warming, misinformation, Policy, Science, Supreme Court / Kelly Newman / August 6, 2025

Official actions don’t challenge science, while unofficial docs muddy the waters.

Last week, the Environmental Protection Agency made lots of headlines by rejecting the document that establishes its ability to regulate the greenhouse gases that are warming our climate. While the legal assault on regulations grabbed most of the attention, it was paired with two other actions that targeted other aspects of climate change: the science underlying our current understanding of the dramatic warming the Earth is experiencing, and the renewable energy that represents our best chance of limiting this warming.

Collectively, these actions illuminate the administration’s strategy for dealing with a problem that it would prefer to believe doesn’t exist, despite our extensive documentation of its reality. They also show how the administration is tailoring its approach to different audiences, including the audience of one who is demanding inaction.

When in doubt, make something up

The simplest thing to understand is an action by the Department of the Interior, which handles permitting for energy projects on federal land—including wind and solar, both onshore and off. That has placed the Interior in an awkward position. Wind and solar are now generally the cheapest ways to generate electricity and are currently in the process of a spectacular boom, with solar now accounting for over 80 percent of the newly installed capacity in the US.

Yet, when Trump issued an executive order declaring an energy emergency, wind and solar were notably excluded as potential solutions. Language from Trump and other administration officials has also made it clear that renewable energy is viewed as an impediment to the administration’s pro-fossil fuel agenda.

But shutting down federal permitting for renewable energy with little more than “we don’t like it” as justification could run afoul of rules that forbid government decisions from being “arbitrary and capricious.” This may explain why the government gave up on its attempts to block the ongoing construction of an offshore wind farm in New York waters.

On Friday, the Interior announced that it had settled on a less arbitrary justification for blocking renewable energy on public land: energy density. Given a metric of land use per megawatt, wind and solar are less efficient than nuclear plants we can’t manage to build on time or budget, and therefore “environmentally damaging” and an inefficient use of federal land, according to the new logic. “The Department will now consider proposed energy project’s capacity density when assessing the project’s potential energy benefits to the nation and impacts to the environment and wildlife,” Interior declared.

This is only marginally more reasonable than Interior Secretary Doug Burgum’s apparent inability to recognize that solar power can be stored in batteries. But it has three features that will be recurring themes. There’s at least a token attempt to provide a justification that might survive the inevitable lawsuits, while at the same time providing fodder for the culture war that many in the administration demand. And it avoids directly attacking the science that initially motivated the push toward renewables.

Energy vs. the climate

That’s not to say that climate change isn’t in for attack. It’s just that the attacks are being strategically separated from the decisions that might produce a lawsuit. Last week, the burden of taking on extremely well-understood and supported science fell to the Department of Energy, which released a report on climate “science” to coincide with the EPA’s decision to give up on attempts to regulate greenhouse gases.

For those who have followed public debates over climate change, looking at the author list—John Christy, Judith Curry, Steven Koonin, Ross McKitrick, and Roy Spencer—will give you a very clear picture of what to expect. Spencer is a creationist, raising questions about his ability to evaluate any science free from his personal biases. (He has also said, “My job has helped save our economy from the economic ravages of out-of-control environmental extremism,” so it’s not just biology where he’s got these issues.) McKitrick is an economist who engaged in a multi-year attempt to raise doubt about the prominent “hockey stick” reconstruction of past climates, even as scientists were replicating the results. Etc.

The report is a master class in arbitrary and capricious decision-making applied to science. Sometimes the authors rely on the peer-reviewed literature. Other times they perform their own analysis for this document, in some cases coming up with almost comically random metrics for data. (Example: “We examine occurrences of 5-day deluges as follows. Taking the Pacific coast as an example, a 130-year span contains 26 5-year intervals. At each location we computed the 5-day precipitation totals throughout the year and selected the 26 highest values across the sample.” Why five days? Five-year intervals? Who knows.)

This is especially striking in a few cases where the authors choose references that were published a few years ago, and thus neatly avoid the dramatic temperature records that have been set over the past couple of years. Similarly, they sometimes use regional measures and sometimes use global ones. They demand long-term data in some contexts, while getting excited about two years of coral growth in the Great Barrier Reef. The authors highlight the fact that US tide gauges don’t show any indication of an acceleration in the rate of sea level rise while ignoring the fact that global satellite measures clearly do.

That’s not to say that there aren’t other problems. There’s some blatant misinformation, like claims that urbanization could be distorting the warming, which has already been tested extensively. (Notably, warming is most intense in the sparsely populated Arctic.) There’s also some creative use of language, like referring to the ocean acidification caused by CO₂ as “neutralizing ocean alkalinity.”

But the biggest bit of misinformation comes in the introduction, where the secretary of energy, Chris Wright, said of the authors, “I chose them for their rigor, honesty, and willingness to elevate the debate.” There is no reason to choose this group of marginal contrarians except the knowledge that they’d produce a report like this, thus providing a justification for those in the administration who want to believe it’s all a scam.

No science needed

The critical feature of the Department of Energy report is that it contains no policy actions; it’s purely about trying to undercut well-understood climate science. This means the questionable analyses in the report shouldn’t ever end up being tested in court.

That’s in contrast to the decision to withdraw the EPA’s endangerment finding regarding greenhouse gases. There’s quite an extensive history to the endangerment finding, but briefly, it’s the product of a Supreme Court decision (Massachusetts v. EPA), which compelled the EPA to evaluate whether greenhouse gases posed a threat to the US population as defined in the Clean Air Act. Both the Bush and Obama EPAs did so, thus enabling the regulation of greenhouse gases, including carbon dioxide.

Despite the claims in the Department of Energy report, there is comprehensive evidence that greenhouse gases are causing problems in the US, ranging from extreme weather to sea level rise. So while the EPA mentions the Department of Energy’s work a number of times, the actual action being taken skips over the science and focuses on legal issues. In doing so, it creates a false history where the endangerment finding had no legal foundation.

To re-recap, the Supreme Court determined that this evaluation was required by the Clean Air Act. George W. Bush’s administration performed the analysis and reached the exact same conclusion as the Obama administration (though the former chose to ignore those conclusions). Yet Trump’s EPA is calling the endangerment finding “an unprecedented move” by the Obama administration that involved “mental leaps” and “ignored Congress’ clear intent.” And the EPA presents the findings as strategic, “the only way the Obama-Biden Administration could access EPA’s authority to regulate,” rather than compelled by scientific evidence.

Fundamentally, it’s an ahistorical presentation; the EPA is counting on nobody remembering what actually happened.

The announcement doesn’t get much better when it comes to the future. The only immediate change will be an end to any attempts to regulate carbon emissions from motor vehicles, since regulations for power plants had been on hold due to court challenges. Yet somehow, the EPA’s statement claims that this absence of regulation imposed costs on people. “The Endangerment Finding has also played a significant role in EPA’s justification of regulations of other sources beyond cars and trucks, resulting in additional costly burdens on American families and businesses,” it said.

We’re still endangered

Overall, the announcements made last week provide a clear picture of how the administration intends to avoid addressing climate change and cripple the responses started by previous administrations. Outside of the policy arena, it will question the science and use partisan misinformation to rally its supporters for the fight. But it recognizes that these approaches aren’t flying when it comes to the courts.

So it will separately pursue a legal approach that seeks to undercut the ability of anyone, including private businesses, to address climate change, crafting “reasons” for its decisions in a way that might survive legal challenge—because these actions are almost certain to be challenged in court. And that may be the ultimate goal. The current court has shown a near-complete disinterest in respecting precedent and has issued a string of decisions that severely limit the EPA. It’s quite possible that the court will simply throw out the prior decision that compelled the government to issue an endangerment finding in the first place.

If that’s left in place, then any ensuing administrations can simply issue a new endangerment finding. If anything, the effects of climate change on the US population have become more obvious, and the scientific understanding of human-driven warming has solidified since the Bush administration first acknowledged them.

John is Ars Technica’s science editor. He has a Bachelor of Arts in Biochemistry from Columbia University, and a Ph.D. in Molecular and Cell Biology from the University of California, Berkeley. When physically separated from his keyboard, he tends to seek out a bicycle, or a scenic location for communing with his hiking boots.

Analysis: The Trump administration’s assault on climate action Read More »

Supreme Court to decide whether ISPs must disconnect users accused of piracy

Cox, piracy, Policy, Supreme Court / Kelly Newman / June 30, 2025

The Supreme Court has agreed to hear a case that could determine whether Internet service providers must terminate users who are accused of copyright infringement.

In a list of orders released today, the court granted a petition filed by cable company Cox. The ISP, which was sued by Sony Music Entertainment, is trying to overturn a ruling that it is liable for copyright infringement because it failed to terminate users accused of piracy. Music companies want ISPs to disconnect users whose IP addresses are repeatedly connected to torrent downloads.

“We are pleased the US Supreme Court has decided to address these significant copyright issues that could jeopardize Internet access for all Americans and fundamentally change how Internet service providers manage their networks,” Cox said today.

Cox was once on the hook for $1 billion in the case. In February 2024, the 4th Circuit court of appeals overturned the $1 billion verdict, deciding that Cox did not profit directly from copyright infringement committed by users. But the appeals court found that Cox was guilty of willful contributory infringement and ordered a new damages trial.

The Cox petition asks the Supreme Court to decide whether an ISP “can be held liable for ‘materially contributing’ to copyright infringement merely because it knew that people were using certain accounts to infringe and did not terminate access, without proof that the service provider affirmatively fostered infringement or otherwise intended to promote it.”

Trump admin backed Cox; Sony petition denied

The Trump administration backed Cox last month, saying that ISPs shouldn’t be forced to terminate the accounts of people accused of piracy. Solicitor General John Sauer told the court in a brief that the 4th Circuit decision, if not overturned, “subjects ISPs to potential liability for all acts of copyright infringement committed by particular subscribers as long as the music industry sends notices alleging past instances of infringement by those subscribers” and “might encourage providers to avoid substantial monetary liability by terminating subscribers after receiving a single notice of alleged infringement.”

Supreme Court to decide whether ISPs must disconnect users accused of piracy Read More »

Supreme Court overturns 5th Circuit ruling that upended Universal Service Fund

Policy, Supreme Court, Universal Service Fund / Beth Washington / June 28, 2025

Finally, the Consumers’ Research position produces absurd results, divorced from any reasonable understanding of constitutional values. Under its view, a revenue-raising statute containing non-numeric, qualitative standards can never pass muster, no matter how tight the constraints they impose. But a revenue-raising statute with a numeric limit will always pass muster, even if it effectively leaves an agency with boundless power. In precluding the former and approving the latter, the Consumers’ Research approach does nothing to vindicate the nondelegation doctrine or the separation of powers.

The Gorsuch dissent said the “combination” question isn’t the deciding factor. He said the only question that needs to be answered is whether Congress violated the Constitution by delegating the power to tax to the FCC.

“As I see it, this case begins and ends with the first question. Section 254 [of the Communications Act] impermissibly delegates Congress’s taxing power to the FCC, and knowing that is enough to know the Fifth Circuit’s judgment should be affirmed,” Gorsuch said.

“Green light” for FCC to support Internet access

In the Gorsuch view, it doesn’t matter whether the FCC exceeded its authority by delegating Universal Service management to a private administrative company. “As far as I can tell, and as far as petitioners have informed us, this Court has never approved legislation allowing an executive agency to tax domestically unless Congress itself has prescribed the tax rate,” Gorsuch wrote.

The FCC and Department of Justice asked the Supreme Court to reverse the 5th Circuit decision. The court also received a challenge from broadband-focused advocacy groups and several lobby groups representing ISPs.

“Today is a great day,” said Andrew Jay Schwartzman, counsel for the Benton Institute for Broadband & Society; the National Digital Inclusion Alliance; and the Center for Media Justice. “We will need some time to sort through the details of today’s decision, but what matters most is that the Supreme Court has given the green light to the FCC to continue to support Internet access to the tens of millions of Americans and the thousands of schools, libraries and rural hospitals that rely on the Universal Service Fund.”

FCC Chairman Brendan Carr praised the ruling but said he plans to make changes to Universal Service. “I am glad to see the court’s decision today and welcome it as an opportunity to turn the FCC’s focus towards the types of reforms necessary to ensure that all Americans have a fair shot at next-generation connectivity,” Carr said.

Supreme Court overturns 5th Circuit ruling that upended Universal Service Fund Read More »

Supreme Court upholds Texas porn law that caused Pornhub to leave the state

Policy, porn, Supreme Court, texas / Mike M. / June 28, 2025

Justice Elena Kagan filed a dissenting opinion that was joined by Sonia Sotomayor and Ketanji Brown Jackson. Kagan said that in similar cases, the court applied strict scrutiny, “a highly rigorous but not fatal form of constitutional review, to laws regulating protected speech based on its content.”

“Texas’s law defines speech by content and tells people entitled to view that speech that they must incur a cost to do so,” Kagan wrote. “That is, under our First Amendment law, a direct (not incidental) regulation of speech based on its content—which demands strict scrutiny.”

The Texas law applies to websites in which more than one-third of the content “is sexual material harmful to minors.” Kagan described the law’s ID requirement as a deterrent to exercising one’s First Amendment rights.

“It is turning over information about yourself and your viewing habits—respecting speech many find repulsive—to a website operator, and then to… who knows? The operator might sell the information; the operator might be hacked or subpoenaed,” Kagan’s dissent said. The law requires website users to verify their ages by submitting “a ‘government-issued identification’ like a driver’s license or ‘transactional data’ associated with things like a job or mortgage,” Kagan wrote.

Limiting no more speech than necessary

Under strict scrutiny, the court must ask whether the law is “the least restrictive means of achieving a compelling state interest,” Kagan wrote. A state facing that standard must show it has limited no more adult speech than is necessary to achieve its goal.

“Texas can of course take measures to prevent minors from viewing obscene-for-children speech. But if a scheme other than H. B. 1181 can just as well accomplish that objective and better protect adults’ First Amendment freedoms, then Texas should have to adopt it (or at least demonstrate some good reason not to),” Kagan wrote.

The majority decision said that applying strict scrutiny “would call into question all age-verification requirements, even longstanding in-person requirements.” It also said the previous rulings cited in the dissent “all involved laws that banned both minors and adults from accessing speech that was at most obscene only to minors. The Court has never before considered whether the more modest burden of an age-verification requirement triggers strict scrutiny.”

Supreme Court upholds Texas porn law that caused Pornhub to leave the state Read More »

TikTok loses Supreme Court fight, prepares to shut down Sunday

bytedance, china, Donald Trump, First Amendment, free speech, national security, Online speech, Policy, SCOTUS, Supreme Court, tiktok, TikTok ban / Shannon Garcia / January 17, 2025

TikTok has said it’s preparing to shut down Sunday.

A TikTok influencer holds a sign that reads “Keep TikTok” outside the US Supreme Court Building as the court hears oral arguments on whether to overturn or delay a law that could lead to a ban of TikTok in the U.S., on January 10, 2025 in Washington, DC. Credit: Kayla Bartkowski / Stringer | Getty Images News

TikTok has lost its Supreme Court appeal in a 9–0 decision and will likely shut down on January 19, a day before Donald Trump’s inauguration, unless the app can be sold before the deadline, which TikTok has said is impossible.

During the trial last Friday, TikTok lawyer Noel Francisco warned SCOTUS that upholding the Biden administration’s divest-or-sell law would likely cause TikTok to “go dark—essentially the platform shuts down” and “essentially… stop operating.” On Wednesday, TikTok reportedly began preparing to shut down the app for all US users, anticipating the loss.

But TikTok’s claims that the divest-or-sell law violated Americans’ free speech rights did not supersede the government’s compelling national security interest in blocking a foreign adversary like China from potentially using the app to spy on or influence Americans, SCOTUS ruled.

“We conclude that the challenged provisions do not violate petitioners’ First Amendment rights,” the SCOTUS opinion said, while acknowledging that “there is no doubt that, for more than 170 million Americans, TikTok offers a distinctive and expansive outlet for expression, means of engagement, and source of community.”

Late last year, TikTok and its owner, the Chinese-owned company ByteDance, urgently pushed SCOTUS to intervene before the law’s January 19 enforcement date. Ahead of SCOTUS’ decision, TikTok warned it would have no choice but to abruptly shut down a thriving platform where many Americans get their news, express their views, and make a living.

The US had argued the law was necessary to protect national security interests as the US-China trade war intensifies, alleging that China could use the app to track and influence TikTok’s 170 million American users. A lower court had agreed that the US had a compelling national security interest and rejected arguments that the law violated the First Amendment, triggering TikTok’s appeal to SCOTUS. Today, the Supreme Court upheld that ruling.

According to SCOTUS, the divest-or-sell law is “content-neutral” and only triggers intermediate scrutiny. That requires that the law doesn’t burden “substantially more speech than necessary” to serve the government’s national security interests, rather than strict scrutiny which would force the government to protect those interests through the least restrictive means.

Further, the government was right to single TikTok out, SCOTUS wrote, due to its “scale and susceptibility to foreign adversary control, together with the vast swaths of sensitive data the platform collects.”

“Preventing China from collecting vast amounts of sensitive data from 170 million US TikTok users” is a “decidedly content agnostic” rationale, justices wrote.

“The Government had good reason to single out TikTok for special treatment,” the opinion said.

TikTok CEO Shou Zi Chew posted a statement on TikTok reacting to the ruling, thanking Trump for committing to “work with TikTok” to avoid a shut down and telling users to “rest assured, we will do everything in our power to ensure our platform thrives” in the US.

Momentum to ban TikTok has shifted

First Amendment advocates condemned the SCOTUS ruling. The American Civil Liberties Union called it a “major blow to freedom of expression online,” and the Electronic Frontier Foundation’s civil liberties director David Greene accused justices of sweeping “past the undisputed content-based justification for the law” to “rule only based on the shaky data privacy concerns.”

While the SCOTUS ruling was unanimous, justice Sonia Sotomayor said that “precedent leaves no doubt” that the law implicated the First Amendment and “plainly” imposed a burden on any US company that distributes TikTok’s speech and any content creator who preferred TikTok as a publisher of their speech.

Similarly concerned was justice Neil Gorsuch, who wrote in his concurring opinion that he harbors “serious reservations about whether the law before us is ‘content neutral’ and thus escapes ‘strict scrutiny.'” Gorsuch also said he didn’t know “whether this law will succeed in achieving its ends.”

“But the question we face today is not the law’s wisdom, only its constitutionality,” Gorsuch wrote. “Given just a handful of days after oral argument to issue an opinion, I cannot profess the kind of certainty I would like to have about the arguments and record before us. All I can say is that, at this time and under these constraints, the problem appears real and the response to it not unconstitutional.”

For TikTok and content creators defending the app, the stakes were incredibly high. TikTok repeatedly denied there was any evidence of spying and warned that enforcing the law would allow the government to unlawfully impose “a massive and unprecedented speech restriction.”

But the Supreme Court declined to order a preliminary injunction to block the law until Trump took office, instead deciding to rush through oral arguments and reach a decision prior to the law’s enforcement deadline. Now TikTok has little recourse if it wishes to maintain US operations, as justices suggested during the trial that even if a president chose to not enforce the law, providing access to TikTok or enabling updates could be viewed as too risky for app stores or other distributors.

The law at the center of the case—the Protecting Americans from Foreign Adversary Controlled Applications Act—had strong bipartisan support under the Biden administration.

But President-elect Donald Trump said he opposed a TikTok ban, despite agreeing that US national security interests in preventing TikTok spying on or manipulating Americans were compelling. And this week, Senator Ed Markey (D-Mass.) has introduced a bill to extend the deadline ahead of a potential TikTok ban, and a top Trump adviser, Congressman Mike Waltz, has said that Trump plans to stop the ban and “keep TikTok from going dark,” the BBC reported. Even the Biden administration, whose justice department just finished arguing why the US needed to enforce the law to SCOTUS, “is considering ways to keep TikTok available,” sources told NBC News.

“What might happen next to TikTok remains unclear,” Gorsuch noted in the opinion.

Will Trump save TikTok?

It will likely soon be clear whether Trump will intervene. Trump filed a brief in December, requesting that the Supreme Court stay enforcement of the law until after he takes office because allegedly only he could make a deal to save TikTok. He criticized SCOTUS for rushing the decision and suggested that Congress’ passage of the law may have been “legislative encroachment” that potentially “binds his hands” as president.

“As the incoming Chief Executive, President Trump has a particularly powerful interest in and responsibility for those national-security and foreign-policy questions, and he is the right constitutional actor to resolve the dispute through political means,” Trump’s brief said.

TikTok’s CEO Chew signaled to users that Trump is expected to step in.

“On behalf of everyone at TikTok and all our users across the country, I want to thank President Trump for his commitment to work with us to find a solution that keeps TikTok available in the United States,” Chew’s statement said.

Chew also reminded Trump that he has 60 billion views of his content on TikTok and perhaps stands to lose a major platform through the ban.

“We are grateful and pleased to have the support of a president who truly understands our platform, one who has used TikTok to express his own thoughts and perspectives,” Chew said.

Trump seemingly has limited options to save TikTok, Forbes suggested. At trial, justices disagreed on whether Trump could legally decide to simply not enforce the law. And efforts to pause enforcement or claim compliance without evidence that ByteDance is working on selling off TikTok could be blocked by the court, analysts said. And while ByteDance has repeatedly said it’s unwilling to sell TikTok US, it’s possible, one analyst suggested to Forbes, that ByteDance might be more willing to divest “in exchange for Trump backing off his threat of high tariffs on Chinese imports.”

On Tuesday, a Bloomberg report suggested that China was considering whether selling TikTok to Elon Musk might be a good bargaining chip to de-escalate Trump’s attacks in the US-China trade war.

Ashley is a senior policy reporter for Ars Technica, dedicated to tracking social impacts of emerging policies and new technologies. She is a Chicago-based journalist with 20 years of experience.

TikTok loses Supreme Court fight, prepares to shut down Sunday Read More »

Texas defends requiring ID for porn to SCOTUS: “We’ve done this forever”

age verification law, age-gating, First Amendment, free speech rights, Policy, pornography, privacy online, SCOTUS, Supreme Court, texas / Mike M. / January 15, 2025

“You can use VPNs, the click of a button, to make it seem like you’re not in Texas,” Shaffer argued. “You can go through the search engines, you can go through social media, you can access the same content in the ways that kids are likeliest to do.”

Texas attorney Aaron Nielson argued that the problem of kids accessing porn online has only gotten “worse” in the decades since Texas has been attempting less restrictive and allegedly less effective means like content filtering. Now, age verification is Texas’ preferred solution, and strict scrutiny shouldn’t apply to a law that just asks someone to show ID to see adult content, Nielson argued.

“In our history we have always said kids can’t come and look at this stuff,” Nielson argued. “So it seems not correct to me as a historical matter to say, well actually it’s always been presumptively unconstitutional. … But we’ve done it forever. Strict scrutiny somehow has always been satisfied.”

Like groups suing, Texas also asked the Supreme Court to be very clear when writing guidance for the 5th Circuit should the court vacate and remand the case. But Texas wants justices to reiterate that just because the case was remanded, that doesn’t mean the 5th Circuit can’t reinstitute the stay on the preliminary injunction that was ordered following the 5th Circuit’s prior review.

On rebuttal, Shaffer told SCOTUS that out of “about 20 other laws that by some views may look a lot like Texas'” law, “this is the worst of them.” He described Texas Attorney General Ken Paxton as a “hostile regulator who’s saying to adults, you should not be here.”

“I strongly urge this court to stick with strict scrutiny as the applicable standard of review when we’re talking about content-based burdens on speakers,” Shaffer said.

In a press release, Vera Eidelman, a senior staff attorney with the ACLU Speech, Privacy, and Technology Project, said that “efforts to childproof the Internet not only hurt everyone’s ability to access information, but often give the government far too much leeway to go after speech it doesn’t like—all while failing to actually protect children.”

Texas defends requiring ID for porn to SCOTUS: “We’ve done this forever” Read More »

Supreme Court lets Hawaii sue oil companies over climate change effects

climate change, fossil fuel companies, Hawaii, Honolulu, Policy, shell, Sunoco, Supreme Court / Beth Washington / January 13, 2025

On Monday, the Supreme Court declined to decide whether to block lawsuits that Honolulu filed to seek billions in damages from oil and gas companies over allegedly deceptive marketing campaigns that hid the effects of climate change.

Now those lawsuits can proceed, surely frustrating the fossil fuel industry, which felt that SCOTUS should have weighed in on this key “recurring question of extraordinary importance to the energy industry” raised in lawsuits seeking similarly high damages in several states, CBS News reported.

Defendants Sunoco and Shell, along with 15 other energy companies, had asked the court to intervene and stop the Hawaii lawsuits from proceeding. They had hoped to move the cases out of Hawaii state courts by arguing that interstate pollution is governed by federal law and the Clean Air Act.

The oil and gas companies continue to argue that greenhouse gas emissions “flow from billions of daily choices, over more than a century, by governments, companies, and individuals about what types of fuels to use, and how to use them.” Because of this, the companies believe Honolulu was wrong to demand damages based on the “cumulative effect of worldwide emissions leading to global climate change.”

“In these cases, state and local governments are attempting to assert control over the nation’s energy policies by holding energy companies liable for worldwide conduct in ways that starkly conflict with the policies and priorities of the federal government,” oil and gas companies unsuccessfully argued in their attempt to persuade SCOTUS to grant review. “That flouts this court’s precedents and basic principles of federalism, and the court should put a stop to it.”

Supreme Court lets Hawaii sue oil companies over climate change effects Read More »

Trump told SCOTUS he plans to make a deal to save TikTok

bytedance, china, Donald Trump, First Amendment, free speech, online censorship, Policy, social media censorship, Supreme Court, tiktok, TikTok ban / Kelly Newman / December 30, 2024

Several members of Congress— Senator Edward J. Markey (D-Mass.), Senator Rand Paul (R-Ky.), and Representative Ro Khanna (D-Calif.)—filed a brief agreeing that “the TikTok ban does not survive First Amendment scrutiny.” They agreed with TikTok that the law is “illegitimate.”

Lawmakers’ “principle justification” for the ban—”preventing covert content manipulation by the Chinese government”—masked a “desire” to control TikTok content, they said. Further, it could be achieved by a less-restrictive alternative, they said, a stance which TikTok has long argued for.

Attorney General Merrick Garland defended the Act, though, urging SCOTUS to remain laser-focused on the question of whether a forced sale of TikTok that would seemingly allow the app to continue operating without impacting American free speech violates the First Amendment. If the court agrees that the law survives strict scrutiny, TikTok could still be facing an abrupt shutdown in January.

The Supreme Court has scheduled oral arguments to begin on January 10. TikTok and content creators who separately sued to block the law have asked for their arguments to be divided, so that the court can separately weigh “different perspectives” when deciding how to approach the First Amendment question.

In its own brief, TikTok has asked SCOTUS to strike the portions of the law singling out TikTok or “at the very least” explain to Congress that “it needed to do far better work either tailoring the Act’s restrictions or justifying why the only viable remedy was to prohibit Petitioners from operating TikTok.”

But that may not be necessary if Trump prevails. Trump told the court that TikTok was an important platform for his presidential campaign and that he should be the one to make the call on whether TikTok should remain in the US—not the Supreme Court.

Trump told SCOTUS he plans to make a deal to save TikTok Read More »

Supreme Court to decide if TikTok should be banned or sold

bytedance, china, First Amendment, free speech, Policy, SCOTUS, Supreme Court, tiktok, TikTok ban / DJ Henderson / December 18, 2024

While the controversial US law doesn’t necessarily ban TikTok, it does seem designed to make TikTok “go away,” Greene said, and such a move to interfere with a widely used communications platform seems “unprecedented.”

“The TikTok ban itself and the DC Circuit’s approval of it should be of great concern even to those who find TikTok undesirable or scary,” Greene said in a statement. “Shutting down communications platforms or forcing their reorganization based on concerns of foreign propaganda and anti-national manipulation is an eminently anti-democratic tactic, one that the US has previously condemned globally.”

Greene further warned that the US “cutting off a tool used by 170 million Americans to receive information and communicate with the world, without proving with evidence that the tools are presently seriously harmful” would “greatly” lower “well-established standards for restricting freedom of speech in the US.”

TikTok partly appears to be hoping that President-elect Donald Trump will disrupt enforcement of the law, but Greene said it remains unclear if Trump’s plan to “save TikTok” might just be a plan to support a sale to a US buyer. At least one former Trump ally, Steven Mnuchin, has reportedly expressed interest in buying the app.

For TikTok, putting pressure on Trump will likely be the next step, “if the Supreme Court ever says, ‘we agree the law is valid,'” Greene suggested.

“Then that’s it,” Greene said. “There’s no other legal recourse. You only have political recourses.”

Like other civil rights groups, the EFF plans to remain on TikTok’s side as the SCOTUS battle starts.

“We are pleased that the Supreme Court will take the case and will urge the justices to apply the appropriately demanding First Amendment scrutiny,” Greene said.

Supreme Court to decide if TikTok should be banned or sold Read More »

Big loss for ISPs as Supreme Court won’t hear challenge to $15 broadband law

ISPs, new york $15 broadband law, Policy, Supreme Court / Kelly Newman / December 17, 2024

The Supreme Court petition was filed by the New York State Telecommunications Association, CTIA-The Wireless Association, NTCA-The Rural Broadband Association, USTelecom, ACA Connects-America’s Communications Association, and the Satellite Broadcasting and Communications Association. Cable lobby group NCTA filed a brief supporting the petition.

New York Attorney General Letitia James defended the state law in a Supreme Court brief filed in October. The brief said that when New York enacted its law, the Pai-era FCC “had classified broadband as an information service subject to Title I of the Communications Act. Under Title I, Congress gave the FCC only limited regulatory authority—leaving ample room for States to regulate information services.”

Multiple appeals courts have found “that federal law does not broadly preempt state regulations of Title I information services,” and “Congress has expressed no intent—much less the requisite clear and manifest intent—to preempt state regulation of Title I information services,” the New York brief said. “Applicants’ field preemption claim fails because, far from imposing a pervasive federal regulatory regime on Title I information services, Congress instead gave the FCC only limited authority over information services. Congress thus left the States’ traditional police powers over information services largely untouched.”

Law requires $15 price, or $20 for higher speeds

It’s unclear when New York might start enforcing its law. The state law was approved in 2021 and required ISPs to offer $15 broadband plans with download speeds of at least 25Mbps, with the $15 being “inclusive of any recurring taxes and fees such as recurring rental fees for service provider equipment required to obtain broadband service and usage fees.”

The law also said ISPs could instead choose to comply by offering $20-per-month service with 200Mbps speeds. Price increases would be capped at 2 percent per year, and state officials would periodically review whether minimum required speeds should be raised.

Residents who meet income eligibility requirements would qualify for the plans. ISPs with 20,000 or fewer subscribers would be allowed to apply for exemptions from the law.

The New York attorney general’s Supreme Court brief argued that public-interest factors “weigh heavily in favor of allowing” the law, and that it won’t create the economic problems that telco groups warned of. “The three largest broadband providers in New York are already offering an affordable broadband product to low-income consumers irrespective of the ABA, and smaller broadband providers can seek an exemption from the ABA’s requirements,” the brief said.

Big loss for ISPs as Supreme Court won’t hear challenge to $15 broadband law Read More »

US businesses will lose $1B in one month if TikTok is banned, TikTok warns

bytedance, Policy, SCOTUS, Supreme Court, tiktok, TikTok ban / 9u50fv / December 9, 2024

The US is prepared to fight the injunction. In a letter, the US Justice Department argued that the court has already “definitively rejected petitioners’ constitutional claims” and no further briefing should be needed before rejecting the injunction.

If the court denies the injunction, TikTok plans to immediately ask SCOTUS for an injunction next. That’s part of the reason why TikTok wants the lower court to grant the injunction—out of respect for the higher court.

“Unless this Court grants interim relief, the Supreme Court will be forced to resolve an emergency injunction application on this weighty constitutional question in mere weeks (and over the holidays, no less),” TikTok argued.

The DOJ, however, argued that’s precisely why the court should quickly deny the injunction.

“An expedient decision by this Court denying petitioners’ motions, without awaiting the government’s response, would be appropriate to maximize the time available for the Supreme Court’s consideration of petitioners’ submissions,” the DOJ’s letter said.

TikTok has requested a decision on the injunction by December 16, and the government has agreed to file its response by Wednesday.

This is perhaps the most dire fight of TikTok’s life. The social media company has warned that not only would a US ban impact US TikTok users, but also “tens of millions” of users globally whose service could be interrupted if TikTok has to cut off US users. And once TikTok loses those users, there’s no telling if they’ll ever come back, even if TikTok wins a dragged-out court battle.

For TikTok users, an injunction granted at this stage would offer a glimmer of hope that TikTok may survive as a preferred platform for free speech and irreplaceable source of income. But for TikTok, the injunction would likely be a stepping stone, as the fastest path to securing its future increasingly seems to be appealing to Trump.

“It would not be in the interest of anyone—not the parties, the public, or the courts—to have emergency Supreme Court litigation over the Act’s constitutionality, only for the new Administration to halt its enforcement mere days or weeks later,” TikTok argued. “This Court should avoid that burdensome spectacle by granting an injunction that would allow Petitioners to seek further orderly review only if necessary.”

US businesses will lose $1B in one month if TikTok is banned, TikTok warns Read More »