Every year before its term begins on the first Monday of October, the U.S. Supreme Court gathers in what’s known as the “long conference,” where it considers a large number of petitions for review in one day and decides which ones to take up. This year, the long conference is taking place on Tuesday, and the high court is slated to consider quite a substantial number of possible First Amendment cases. Though the 2023-24 term is not likely to compare to the barn burner of a First Amendment term we saw in 2022-23, there are a few First Amendment petitions on the long conference docket that could have significant implications for the press.
First, as we have talked about in this newsletter before, the Court will return to the NetChoice cases challenging state efforts to regulate content moderation on social media. The Supreme Court considered these cases in a January 2023 conference and invited the U.S. Solicitor General to submit the government’s views on the case. This is a strong indicator that the high court is likely to grant review of these cases, which involve some of the trickiest and most consequential questions about free speech in the digital age.
In addition to the NetChoice cases, the Supreme Court will also decide whether to take up a case challenging the constitutionality of a North Carolina law prohibiting undercover recording in the workplace. In that case, People for the Ethical Treatment of Animals, an organization that investigates and exposes animal abuse in the United States, has argued that the law violates the First Amendment. PETA prevailed in the U.S. Court of Appeals for the Fourth Circuit, which concluded that, as applied to the newsgathering activities of PETA and its co-plaintiffs, the North Carolina recording ban is unconstitutional. (In its decision, the Fourth Circuit cited a friend-of-the-court brief the Reporters Committee and 17 media organizations filed in support of PETA.)
Other notable cases on the Supreme Court’s docket: a First Amendment challenge to the state of Washington’s ban on conversion therapy; an alleged prior restraint barring the release of undercover recordings in medical facilities that provide abortions; and a dispute over the constitutionality of New Jersey’s so-called “slogan statute,” which regulates the six words that candidates for political office are permitted to include next to their names on the ballot.
Finally, the justices will take up questions about whether criminal prosecution for alleged defamation of a public official violates the First Amendment. (The Reporters Committee-run UVA Law First Amendment Clinic, of which yours truly is an alumnus, submitted a friend-of-the-court brief in support of the petition in this case.)
Whatever happens, we’ll keep you posted.
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The Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press uses integrated advocacy — combining the law, policy analysis, and public education — to defend and promote press rights on issues at the intersection of technology and press freedom, such as reporter-source confidentiality protections, electronic surveillance law and policy, and content regulation online and in other media. TPFP is directed by Reporters Committee attorney Gabe Rottman. He works with RCFP Staff Attorney Grayson Clary and Technology and Press Freedom Project Fellow Emily Hockett.