Last week, the U.S. Supreme Court held its “long conference” in advance of the start of a new term on Oct. 4. At the conference, the justices considered all new petitions since the beginning of July, a total of 1,296. Usually, the Court will agree to hear a handful of these cases. Last year, it granted seven new petitions. This year it granted four, including only one First Amendment case — involving the government speech doctrine and the religion clauses.
Perhaps more notable than the cases the Court agreed to review at the long conference are those where we’re still waiting to know. One of those cases concerns a lawsuit brought by a news organization challenging the constitutionality of a transit authority’s advertising policy. And another case could be of particular interest to readers of this newsletter: Colone v. Superior Court of California, San Francisco County.
In that case, the California Court of Appeal held that the Stored Communications Act barred a prisoner on death row in Texas, seeking post-conviction relief, from subpoenaing the source code for a DNA identification technology hosted by GitHub on its cloud platform. At base, the question presented concerns the scope of the Stored Communications Act’s prohibition on knowingly disclosing electronic records unless an exception applies.
In addition to the four cases the Supreme Court agreed to take at the long conference, the Court has agreed to resolve just 32 cases from its merits docket thus far, which is less than half of the cases the Court has taken in a normal year. Accordingly, some other big ticket cases could be added to the Court’s calendar at later conferences, including American Civil Liberties Union v. United States, which is set for consideration on Oct. 8.
That case involves the profound question of whether the Foreign Intelligence Surveillance Court has jurisdiction over a motion arguing that the First Amendment grants a qualified right of access to the court’s opinions, and whether the Foreign Intelligence Surveillance Court of Review has jurisdiction over a subsequent denial of such a motion. In a friend-of-the-court brief, the Reporters Committee and 34 media organizations argue that FISC courts are now responsible for considering “some of the weightiest and most complex constitutional questions presented today,” making public visibility into their application of the First and Fourth Amendments, and the Foreign Intelligence Surveillance Act (the law that created the FISC and authorizes surveillance in the United States for foreign intelligence purposes), doubly important.
We will be following developments in these and other cases closely.
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 Stanton Foundation National Security/Free Press Legal Fellow Grayson Clary and Technology and Press Freedom Project Legal Fellow Gillian Vernick.