USD Law Supreme Court Faculty Review 2022-23

University of San Diego School of Law

Th e B L U E B R I E F

Faculty Review of the 2022-23 U.S. Supreme Court Term

Introduction 3 A Victory for State Autonomy and Animal Welfare in National Pork Producers Council v. Ross 4 The Line Between Threats and Free Speech in Counterman v. Colorado 7 Haaland v. Brackeen: Preserving Indian Families and Tribal Sovereignty 10 Platform Liability for Algorithmic Moderation in the Google and Twitter Decisions 13 A Blast from the Past of Personal Jurisdiction in Mallory v. Norfolk Southern 16 Dog Toys, Trademarks, and Free Speech in Jack Daniel’s v. VIP Products 19 Tackling a $400 Billion Dollar Question in Biden v. Nebraska 22 Students for Fair Admissions v. Harvard College: An Endpoint to Race-Preferential Affirmative Action?

25 A Collision Between Free Speech and Anti-Discrimination in 303 Creative LLC v. Elenis 28 In Bartenwerfer v. Buckley, Textualism Continues its Reign in Bankruptcy Law 31

Table of Contents

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

By Robert Schapiro, Dean and C. Hugh Friedman Professor of Law

I

A Victory for State Autonomy and Animal Welfare in National Pork Producers Council v. Ross . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

By Laurence Claus, Professor of Law

II

The Line Between Threats and Free Speech in Counterman v. Colorado . . . . . . . . . . . 7

III

Haaland v. Brackeen: Preserving Indian Families and Tribal Sovereignty . . . . . . . . . 10

By Kevin Cole, Professor of Law

By Jessica Heldman, Fellmeth-Peterson Associate Professor in Child Rights

Platform Liability for Algorithmic Moderation in the

IV Google and Twitter Decisions

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

By Orly Lobel, Warren Distinguished Professor of Law; Director, Center for Employment and Labor Policy

V

A Blast from the Past of Personal Jurisdiction in Mallory v. Norfolk Southern . . . . 16

VI

Dog Toys, Trademarks, and Free Speech in Jack Daniel’s v. VIP Products . . . . . . . . . . 19

VII

Tackling a $400 Billion Question in Biden v. Nebraska . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

VIII

Students for Fair Admissions v. Harvard College: An Endpoint to Race-Preferential Affirmative Action? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

By Shawn Miller, Professor of Practice

By Lisa Ramsey, Professor of Law

By Michael Rappaport, Hugh and Hazel Darling Foundation Professor of Law; Director, Center for the Study of Constitutional Originalism

By Maimon Schwarzschild, Professor of Law

A Collision Between Free Speech and Anti-Discrimination in

IX 303 Creative LLC v. Elenis

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

By Steven Smith, Warren Distinguished Professor of Law; Co-Executive Director of the Institute for Law & Religion and the Institute for Law & Philosophy

X

In Bartenwerfer v. Buckley, Textualism Continues its Reign in Bankruptcy Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

By Mary Jo Wiggins, Professor of Law

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Robert

Schapiro

Dean and C. Hugh Friedman Professor of Law

Introduction The University of San Diego School of Law is pleased to announce the third annual Blue Brief, a faculty review of eleven carefully selected rulings from the most recent Term of the United States Supreme Court. USD has an extraordinarily distinguished law faculty, and I believe that you will enjoy reading their assessments of cases across various important topics, including affirmative action, student loan forgiveness, the First Amendment, Native American law, personal jurisdiction, trademark law, the dormant commerce clause, and internet platform liability.

Appeals for the District of Columbia Circuit and the United States District Court for the District of Columbia. Justice Jackson is the first Black woman to serve as a Supreme Court justice. The Court also encountered many calls for change from politicians and reformers. It remains to be seen what impact, if any, these calls to action will have. In any event, the Court has shown it remains central to the determination of socially contentious and politically charged issues.

In addressing critical issues, the Justices often rely on the insights of our faculty, and this past Term was no exception. In his opinion in Students for Fair Admissions, Justice Clarence Thomas cited an article by Professor Michael Rappaport and an amicus brief co-authored by Professor Gail Heriot.

In Haaland v. Brackeen, Justice Thomas cited an article co-authored by Professor Michael Ramsey.

Warm Regards,

Robert A. Schapiro Dean and C. Hugh Friedman Professor of Law

This was another momentous Term in many respects. It was the first term of Justice Ketanji Brown Jackson, a distinguished jurist who served as a judge on the United States Court of U n i v e r s i t y o f S a n D i e g o S c h o o l o f L aw

We are very happy to share the insights of ten of our eminent faculty on these important Supreme Court decisions. We are eagerly awaiting the opening of the Court’s new Term on October 2, 2023, and we look forward to reporting back to you in the summer of 2024 with the latest developments.

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Laurence

Claus

Professor of Law

I.

A Victory for State Autonomy and Animal Welfare in National Pork Producers Council v. Ross

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oncerned about animal suffering, Californians voted to ban sales in California of pork from farms where mother pigs were confined in such small spaces that they could not lie down, stand up, fully extend their limbs, and turn around freely. Californians insisted that, with narrow exceptions, “breeding pigs” in California had to be able to do all these things, and that each had to have at least 24 square feet of usable floor space. If pork came from elsewhere, it could be sold in California only if produced in compliance with the California rules.

the several States, and with the Indian Tribes.”

Congress had made no law that could prevent California’s new law from operating. But the pork producers pointed to Supreme Court precedents that discerned a constitutional limitation on state governments implicit in the Constitution’s conferral on Congress of power over interstate commerce.

Not much pork is produced in California, but a lot is sold here. Out-of-state producers complained that to access the California market, they would have to make expensive changes to their farming methods. They sued, arguing that for California to impose such a burden on them would violate the United States Constitution.

In particular, they pointed to the Constitution’s conferral on Congress of power to “regulate Commerce with foreign Nations, and among

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The Supreme Court’s so-called “Dormant Commerce Clause” jurisprudence clearly condemns state laws that discriminate against interstate commerce to give in-state businesses an advantage. According to the Court, the Constitution does not let state governments shield in-state businesses from out-of-state competition. The Court has gone beyond condemning state laws that explicitly treat out-of-state businesses differently from instate businesses and has also struck down other measures in which the Court finds lurking a protectionist purpose. But what about a law like California’s? The pork producers could not find a way to call that law protectionist. It treated

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compromise between those interests. Quoting Justice Scalia, Justice Gorsuch observed: “the task is like being asked to decide whether a particular line is longer than a particular rock is heavy.”

When the nation and a state are vying for power, deciding who has it is up to the courts in federations like ours.

“But we do this all the time” could have been the response. Chief Justice Roberts’ partial dissent cited some examples from the myriad.

In one case, the Court weighed “the purpose to keep the streets clean and of good appearance” against “the constitutional protection of the freedom of speech and press.” In another, the Court concluded that the reasonableness “of surgical intrusions beneath the skin depends on a case-by-case approach, in which the individual’s interests in privacy and security are weighed against society’s interests in conducting the procedure.” In a third, the Court held that in “considering what standard should govern in a civil commitment proceeding, we must assess both the extent of the individual’s interest in not being involuntarily confined indefinitely and the state’s interest in committing the emotionally disturbed under a particular standard of proof.”

in-state and out-of-state pork producers just the same. But it imposed a big new burden on them all. Could that be enough to violate the United States Constitution?

In National Pork Producers Council v. Ross, the Supreme Court splintered in its answer. In his opinion for the Court, Justice Gorsuch observed that the pork producers had not alleged even covert discrimination against out-of-state producers. Although a majority of the Court agreed with him that California’s law should be upheld, a different majority emphasized that sometimes being too burdensome might be enough to cause a nondiscriminatory law to fall afoul of the Constitution.

If the incommensurability of competing interests always meant that courts should not decide which interest should prevail, then much in constitutional bills of rights should be nonjusticiable. Justiciable bills of rights often invite enforcing courts to substitute the judges’ moral reasoning and intuition for those of others in government about how competing interests stack up against each other, even when those interests are incommensurable.

Writing only for Justices Thomas, Barrett, and himself in Part IV–B, Justice Gorsuch contended that courts were not the places to decide whether the good done by California’s law was greater than the burdens it imposed.

Why not? Because the interests served by that law, such as preventing animal suffering, and the interests adversely affected by that law, such as having low-cost access to desired food, are “incommensurable.” Courts are not distinctively capable of deciding which matters more, and whether a law like California’s strikes a just

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Each of us in our own lives must make judgments involving incommensurable interests every day. Do we let our eight-year-old practice the piano (which we’ve told her is a very good thing to do) when our baby is asleep? Probably

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not—we would usually judge the good of letting the baby sleep to be greater. But what if our child has a piano recital tomorrow?

Then maybe we need to find a way to move the baby. Reasonable people may disagree about what’s best. And when they do in the wider space of a whole society, a written constitution can make the courts the dispute resolvers.

Incommensurability, and some need to resort to moral intuition about what is best to do, all things considered, cannot stop courts from doing the balancing.

Commerce Clause functions like an individual rights limitation, even though derived by implication from a conferral of national power.

It’s the pork producers who were primarily doing the complaining, not the national government (though the national executive chimed in on their behalf). Justice Gorsuch’s approach implicitly distinguished the Court’s Dormant Commerce Clause jurisprudence methodologically from the jurisprudence by which the Court enforces express constitutional rights. In applying express constitutional rights, the Court often has to weigh incommensurables.

But the Dormant Commerce Clause is express only in the opinions of the courts. In signaling that the Dormant Commerce Clause should largely be confined to precluding overt or covert state protectionism, Justice Gorsuch implied that the justices should use their own scales to weigh incommensurable interests only when the Constitution’s text clearly insists.

When the nation and a state are vying for power, deciding who has it is up to the courts in federations like ours. Deciding what individual rights-based limits on government power there should be need not be up to the courts— constitutional democracy can flourish without that jurisdiction, as Canada long proved and as Australia continues to prove. The Dormant

Laurence Claus

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Kevin

Cole

Professor of Law

II.

The Line Between Threats and Free Speech in Counterman v. Colorado

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t first glance, Counterman v. Colorado looks like a stalking prosecution. Counterman had never met C.W., a singer and musician in Counterman’s hometown. Nevertheless, Counterman sent her hundreds of Facebook messages from 2014 to 2016. C.W. repeatedly blocked Counterman, but each time he evaded her efforts by creating a new Facebook account.

Some of the messages suggested a nonexistent familiarity (“Good morning sweetheart”; “I am going to the store would you like anything?”).

Others suggested that Counterman was watching C.W.’s public movements. And some “expressed anger” or “envisaged harm befalling her.”

Colorado charged Counterman under a statute titled “Stalking.” Such statutes are common.

California was the first state to adopt one, after the killing of actress Rebecca Schaeffer by an obsessed fan in 1989. Colorado’s statute likewise criminalized a range of conduct. But since prosecutors had no evidence against

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Counterman other than his messages, the courts focused on the prohibition on “[r]epeatedly… mak[ing] any form of communication with another person” in “a manner that would cause a reasonable person to suffer serious emotional distress.” The Colorado courts held that this “objective” focus on “reasonable[ness]” was permissible under the First Amendment’s exception for true threats.

Writing for a five-justice majority, Justice Kagan disagreed. Language that would reasonably be understood as a threat is indeed unprotected speech, the majority concluded. However, the majority was concerned about the “chilling effect” on protected speech of using a solely objective test. Some protected speech might be self-censored as people became aware that others were being prosecuted for accidentally causing alarm. Accordingly, the Court required a showing of “recklessness” in true-threat cases to provide a “buffer zone” for protected speech.

The Court quoted language from an earlier

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on matters of public concern, a standard first articulated in New York Times Co. v.

Sullivan. The Counterman majority borrowed Sullivan’s recklessness standard in crafting its test for true threats. In a separate dissent in Counterman, Justice Thomas, a longtime critic of Sullivan, bemoaned “the majority’s surprising and misplaced reliance” on the case. That reliance suggests that he and Justice Gorsuch have not yet assembled the majority that would be needed to inter Sullivan.

opinion as setting forth “the most common formulation” of “recklessness”: when a person “consciously disregard[s] a substantial [and unjustifiable] risk that the conduct will cause harm to another.”

Justice Sotomayor, joined by Justice Gorsuch, concurred in the judgment because she viewed the case to entail stalking. Criminalizing Counterman’s repeated conduct under a recklessness standard does not pose much risk to protected speech. Applying the same standard to isolated statements, on the other hand, could chill protected speech.

Recklessness determinations invite juries to consider whether the risks of causing fear are justified by the “social utility” of the speaker’s activities—a “troubling standard for juries in a polarized nation to apply in cases involving heated political speech.” Justice Sotomayor’s approach would have eliminated the need to opine on the standards applicable to a oneoff comment. If forced to do so, however, Justice Sotomayor would have required that a defendant “intend” the challenged speech to cause fear. She contended that this standard was already implicit in the Court’s 2003 opinion in Virginia v. Black. In that case, she argued, the Court had required a showing that defendant had “intended to intimidate” as a predicate to criminal punishment for burning a cross at a Ku Klux Klan rally.

The Court required a showing of “recklessness” in true-threat cases to provide a “buffer zone” for protected speech.

If former President Trump is prosecuted for the violence at the U.S. Capitol on January 6, 2021, the Court’s treatment of the incitement doctrine will also be of interest. Every member of the Court endorsed the idea that only speech “intended” to incite crime escapes First Amendment protection. The majority resisted the temptation to water down that standard and apply recklessness as the unitary mental state in the “chilling effect” setting, even though one court of appeals and an amicus brief suggested the possibility.

Justice Barrett, joined by Justice Thomas, dissented. Justice Barrett read the historical record as supporting an objective standard of liability at the time of the founding.

Apart from its clarification of the true-threats exception, Counterman will bring comfort to those worried that the Court might pull back on the protections journalists enjoy from libel suits when writing about public figures

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The majority’s use of different standards in incitement and threat cases will require drawing

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lines between the categories. Justice Sotomayor suggested that the task may be difficult: “Speech inciting imminent and dangerous unlawful activity will … be threatening to those who would be harmed by that illegality.” Whether incitement cases will so readily be repackaged

as threat cases—and prosecutable on the lower threat standard—remains to be seen. It seems plausible, however, to distinguish between a threat to engage in violence personally and an effort to induce others to violence, even if in some cases a speaker does both.

Kevin Cole

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Jessica

Heldman Fellmeth-Peterson Associate Professor in Child Rights

III.

Haaland v. Brackeen: Preserving Indian Families and Tribal Sovereignty

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ongress passed the Indian Child Welfare Act (ICWA) in 1978 to “protect the best interests of Indian children and to promote the stability and security of Indian tribes and families.” (Consistent with the terminology in ICWA, I will refer to Native American and Alaska Native tribes and individuals as “Indian”). Since its enactment, ICWA has faced a multitude of legal challenges. In Haaland v.

Brackeen, a 7–2 opinion authored by Justice Barrett, the Supreme Court rejected the most recent and significant effort to invalidate the law, affirming ICWA’s constitutionality.

Congress took notice, as many as one-third of Indian children had been removed from their families, with 85% placed in non-Indian homes, decimating Indian communities. To address this existential threat to tribes, Congress enacted ICWA. ICWA establishes minimum federal standards for the removal and placement of Indian children. It requires tribes to be notified of any involuntary removal proceeding and provided the opportunity to intervene. Before removing a child, ICWA requires a showing that “active efforts” were made to provide services to keep the Indian family intact and that continuance in the home is likely to cause serious harm to the child. When removal is warranted, ICWA mandates a preference for foster care or adoptive placements with tribal affiliation— with priority given to a member of the child’s extended family. Importantly, the law does not bar non-Indian families from adopting or fostering Indian children. Such placement can

The United States has a tragic history of unnecessarily and forcefully removing Indian children from their parents and communities and placing them with non-Indian families or in abusive boarding schools. The goal of these practices was no secret; both public and private actors sought the eradication of tribal identity and the complete assimilation of Indians into the dominant culture. By the time

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occur if good cause is shown that the child cannot or should not be placed or adopted pursuant to the mandated preferences.

legislate regarding Indian tribes, which is broad enough to encompass issues involving family law. The majority explained that this power derives from several sources, including the Indian Commerce Clause, Article 1, Section 8 of the Constitution, which gives Congress the authority to “regulate Commerce … with the Indian tribes.”

Child advocates praise ICWA for representing the “gold standard” in child welfare policy: emphasizing the preservation of family connections and reducing the potential of cultural bias in removal decisions. Critics of ICWA argue that the law discriminates against non-Indian individuals to the detriment of Indian children they seek to adopt. Supporting this narrative and the effort to invalidate ICWA are special interests that would benefit from the weakening of tribal sovereignty.

Petitioners next argued that ICWA’s requirement that child welfare agencies show “active efforts” commands states to implement federal law, violating the anti-commandeering principle of the Tenth Amendment. The Court disagreed, pointing out that ICWA’s “active efforts” requirement applies to any party seeking removal, including private individuals.

As Justice Barrett explained, “Legislation that applies ‘evenhandedly’ to state and private actors does not typically implicate the Tenth Amendment.”

This decision did not break new ground, and it may not be the final battle over ICWA, but it adhered to precedent and maintained an important status quo for Indian tribes and children.

In Haaland v. Brackeen, petitioners—a birth mother, non-Indian potential adoptive parents, and the State of Texas—presented several grounds for invalidating ICWA. They first claimed that Congress exceeded its authority in enacting ICWA. In rejecting this claim, the Court relied on extensive precedent recognizing Congress’s “plenary and exclusive” power to

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Following these rulings on the merits, the Court rejected the remaining equal protection and non-delegation claims on the basis that petitioners lacked standing. The claim that ICWA’s placement preferences unconstitutionally discriminate based on race was particularly concerning to tribes.

Congress’s special treatment of Indians has long been defined as “political rather than racial in nature.” For now, this distinction remains.

However, in his concurrence, Justice Kavanaugh clearly articulated his interest in reaching the equal protection issue in the future.

Justice Gorsuch also concurred, writing separately to add historical context, an important contribution given the stakes of this case. A narrow reading of the Indian Commerce Clause, as argued for by petitioners, would undermine Congress’s ability to regulate regarding Indian affairs, leaving states with

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that authority. Justice Gorsuch emphasized that this is wholly incompatible with long-standing precedent and the Constitution’s promise of tribal sovereignty.

very same factors that state statutes … already direct courts to consider when determining a child’s best interests.”

In his dissent, Justice Thomas claimed, in contrast with the majority, that history supports a narrower view of Congress’s authority that would not encompass family law. In a separate dissent, Justice Alito argued that ICWA’s placement preferences displace the states’ “best interest” standard guiding child placement decisions. However, as explained in the amicus brief submitted by more than 30 child advocacy organizations, “The guiding principles that animate ICWA—promoting family integrity, placement with extended family, and maintaining community and culture—are the

After decades of legal challenges, the Court unequivocally, and somewhat surprisingly, resolved highly contentious issues in favor of sustaining ICWA. This decision did not break new ground, and it may not be the final battle over ICWA, but it adhered to precedent and maintained an important status quo for Indian tribes and children. ICWA will continue to, as articulated by Justice Gorsuch, “secure the right of Indian parents to raise their families as they please; the right of Indian children to grow in their culture; and the right of Indian communities to resist fading into the twilight of history.”

Jessica Heldman

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Orly

Lobel Warren Distinguished Professor of Law; Director, Center for Employment and Labor Policy

IV.

Platform Liability for Algorithmic Moderation in the Google and Twitter Decisions

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re social media platforms liable for offline harm by users? In Twitter, Inc. v. Taamneh, the families of victims of a 2017 ISIS terrorist attack in Turkey filed suit against Twitter alleging that the defendants knowingly allowed ISIS and its supporters to use their platforms. In Reynaldo Gonzalez v. Google LLC, the family of Nohemi Gonzalez, an American killed in a 2015 terrorist attack by ISIS in Paris, brought a similar suit against Google, the owner of YouTube. At the heart of both lawsuits was the claim that recommendation algorithms are used as tools for recruiting, fundraising, and spreading propaganda, that the companies profited from advertisements placed on ISIS’s posts, and that the defendants knew ISIS was uploading this content but did not take enough steps to ensure the content was removed. And at the heart of this question are two federal statutes, the Justice Against Sponsors of Terrorism Act (JASTA) and Section 230 of the Communications Decency Act (CDA). JASTA is a statute that permits United

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States nationals who have been injured by international terrorism to file a civil suit for damages. In 2016, Congress enacted JASTA to impose secondary liability on anyone who “aids and abets” by knowingly assisting or conspiring with a person or organization that committed an act of terrorism, as laid out in Section 2333 of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). In 1996, Congress enacted Section 230 to shield online platforms from liability for content posted by users. The scope and interpretation of Section 230 and the relationship between it and statutes like JASTA continue to be the subject of great debate as the online world expands and shapes every aspect of our lives.

The opinion in Twitter v. Taamneh focused on Section 2333 of AEDPA. Relying on Halberstam v. Welch, the Court determined that Twitter did not meet the requirements for aiding and abetting. The Court rested on two reasons.

First, there was no evidence to support that

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the social media platform was used to plan the attack. Second, Twitter was not considered to have knowingly and intentionally allowed the content because it was the algorithms— rather than humans—that failed to restrict the content posted by ISIS. To determine whether Twitter “knowingly and substantially assisted the principal violation” under Section 2333, the Court considered six factors: (1) the nature of the act assisted; (2) the amount of assistance provided; (3) whether the defendant was present at the time of the principal tort; (4) the defendant’s relation to the tortious actor; (5) the defendant’s state of mind; and (6) the duration of the assistance given. Reversing the decision of the Ninth Circuit, the Court determined that the nexus between Twitter and the terror attack was far removed, and the respondents had therefore failed to state a claim.

In Gonzalez v. Google, respondents similarly claimed that YouTube had become an essential part of ISIS’s terrorism program, used to recruit members, plan attacks, and issue threats. The theory of liability was that Google’s algorithm recommended personalized content to users, and specifically that it reviewed and approved ads posted by ISIS users and shared proceeds with ISIS through YouTube’s revenue sharing system. The respondent’s core argument was that presentation of user-generated content, which receives immunity under Section 230, is different from recommendation of content, for which a platform may be liable. In a per curiam decision, the Court vacated the judgment and remanded the case to the Ninth Circuit, stating that the liability claims in the Gonzalez case were “materially identical” to those from the Twitter case: “Since we hold that the complaint in that case fails to state a claim for aiding and abetting under § 2333(d)(2), it appears to follow that the complaint here likewise fails to state such a claim.” The Court also noted that the

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Ninth Circuit had held the plaintiffs “plausibly alleged neither that ‘Google reached an agreement with ISIS,’ as required for conspiracy liability, nor that Google’s acts were ‘intended to intimidate or coerce a civilian population, or to influence or affect a government,’ as required for a direct-liability claim under § 2333(a).”

The scope and interpretation of Section 230 continues to be the subject of great debate as the online world expands and shapes every aspect of our lives.

Section 230 has long been controversial. Section 230 provides what is often described as “Good Samaritans” protection to internet servers or platforms to moderate user-generated content.

The section distinguishes online providers from the publisher or speaker of information posted by users. It has routinely been interpreted as protecting platforms from liability for both content that is removed and content that is not removed from the platform.

At the same time, there has been a growing debate about whether today, nearly three decades after it was enacted, Section 230 is due for reform given the robust ways in which

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platform engagement affects every aspect of our global communications. In Gonzalez alone, 78 organizations submitted amicus briefs representing a broad spectrum of interests on how to interpret the clause. There are also numerous legislative reform proposals to hold companies accountable for algorithmically recommended content. One such proposal is the SAFE TECH Act, which would provide that Section 230 does not apply to ads or other paid content by online service providers. Other proposals would distinguish between merely hosting user-generated posts and moderating or curating content, the latter being subject to liability in cases of online discrimination, harassment, misinformation, civil rights violations, and other harms. A new bill dubbed the No Section 230 Immunity for AI Act takes the path of differentiating between humans and machines, so that platforms would be liable

to content generated by artificial intelligence based on large language models such as ChatGPT, Bard, and Copilot. Another path would be to retain Section 230’s immunity for the vast majority of harms, but impose liability in the most dangerous contexts, such as terrorism.

Any reform to Section 230 must be done with caution so that legal policy incentivizes private platforms to engage in ethical content moderation. Moreover, any imposition of platform liability must consider the effects of such regulation on competition, and any changes to the law should be carefully evaluated to ensure they strike a balance between protecting free speech, fostering innovation, and addressing legitimate concerns related to harmful content and platform accountability.

Orly Lobel

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Shawn

Miller Professor of Practice

V.

A Blast from the Past of Personal Jurisdiction in Mallory v. Norfolk Southern

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allory v. Norfolk Southern Railway Co. continues seventy years of sharply divided Supreme Court cases considering the scope of state court power to adjudicate disputes involving out-of-state defendants—the question of personal jurisdiction. In 1945, in International Shoe Co. v. Washington, the Court held that in order to subject a person not present in a state to personal jurisdiction, all that due process requires is for that individual to “have certain minimum contacts with [that state] such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’” Years later, the Court held that “all assertions of state-court jurisdiction must be evaluated according to the standards set forth in International Shoe” and “that prior decisions inconsistent with this standard” are overruled. What is and is not inconsistent with International Shoe was at the heart of the disagreement in the 5–4 decision in Mallory.

After working for Norfolk Southern in Ohio and Virginia for twenty years as a freight-car

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mechanic, Robert Mallory left the company and moved to Pennsylvania and then later back to Virginia. Along the way, Mr. Mallory developed cancer, which he believed was the result of exposure to hazardous materials at Norfolk Southern. He sued Norfolk Southern in Pennsylvania state court. The company responded that Pennsylvania courts lacked personal jurisdiction over it for this claim.

Norfolk Southern appeared to have a strong case. Blackletter law divides personal jurisdiction into two categories: specific and general jurisdiction. General jurisdiction allows a state’s courts to adjudicate “any and all claims” against a defendant. But general jurisdiction only exists where the defendant is “at home,” and a corporation is only “at home” in its state of incorporation and principal place of business. For Norfolk Southern, this meant that its sole “at home” state was Virginia.

Specific jurisdiction allows a state court to adjudicate claims over defendants at home in other states, but only if those claims arise out

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of or relate to the defendant’s contacts with the forum state. Because Mr. Mallory’s claim was based on activities and injuries in Virginia and Ohio, Pennsylvania courts also lacked specific jurisdiction over Norfolk Southern.

Justice Alito explained that he agreed that the Supreme Court’s unanimous 1917 decision in Pennsylvania Fire was controlling. In that case, an Arizona company sued a Pennsylvania insurance corporation in Missouri for a claim arising from an insurance contract issued in and protecting property located in Colorado.

Missouri law required out-of-state insurance companies doing business in the state to agree to appoint a state official to serve as the company’s agent and to agree that it would accept service on that official as valid in any suit. The defendant complied with that statute, and the Court held that Missouri’s scheme could be construed as express consent to jurisdiction and therefore not a due process violation.

What is and is not inconsistent with International Shoe was at the heart of the disagreement in the 5–4 decision in Mallory.

Two additional facts, however, offered Mr. Mallory a path forward in his chosen forum.

Under Pennsylvania law, foreign corporations agree to appear in its courts on “any cause of action” when they register to do business in the state, and Norfolk Southern had been so registered in Pennsylvania for over twenty years.

In 2021, the Pennsylvania Supreme Court held that the state law’s conditioning of registration on consent to general jurisdiction violated the Due Process Clause. The same year, the Georgia Supreme Court decided that a similar condition on registered foreign corporations was constitutional. This split spurred the Supreme Court to grant certiorari in Mallory.

Justice Gorsuch wrote for the Court, joined by Justices Thomas, Alito, Sotomayor, and Jackson.

But Justice Alito, the fifth and deciding vote, only joined in part. In his separate concurrence,

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Justice Alito joined the rest of the majority in stressing that consent has been recognized as a valid and distinct basis for personal jurisdiction not only in Pennsylvania Fire, but throughout the country’s history. Thus, five justices agreed that Pennsylvania Fire was consistent with the standards set forth by International Shoe and its progeny; the latter cases do not implicate consent but rather “involve constitutional limits on jurisdiction over non-consenting corporations.”

The portion of Justice Gorsuch’s opinion that Justice Alito did not join expands upon the rationale for this narrow holding. Justice Gorsuch argued that jurisdiction over Norfolk Southern is consistent with the historical development of state business registration statutes. He also noted that individuals may be hailed into a state’s courts on any claim if they are served with process while in that state, and he seemed to argue that allowing states to “tag” foreign corporations through their registration statutes equalizes the courts’ power over individuals and entities.

In her separate concurrence, Justice Jackson

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stressed that another pre-International Shoe decision, Insurance Corp. of Ireland, held that the personal jurisdiction requirement is an individual, waivable right. Further, she explained that waiver can be explicit or implicit.

Finally, she argued that Norfolk Southern was not compelled because registration is only required “when corporations seek to conduct local business in a ‘regular, systematic, or extensive’ way.”

dissent also contested whether the Pennsylvania statute could be said to constitute consent “in a conventional sense of the word.” Further, she explained that the Due Process Clause protects not just the rights of defendants, but the rights of the states in our federalist system to be free from encroachment on matters that properly belong to them. Since Pennsylvania Fire was inconsistent with these embedded principles, she reasoned, it had already been overruled.

Justice Barrett’s dissent, joined by Chief Justice Roberts, Justice Kagan, and Justice Kavanaugh, began by asserting that International Shoe established a now-settled rule that the Due Process Clause precludes state courts from asserting general jurisdiction over foreign defendants simply because they do business in the state. Justice Barrett argued that the Court’s general personal jurisdiction precedents had restricted a corporation’s home to its principal place of business and state of incorporation, and that allowing states to avoid these holdings simply by requiring consent as a condition of doing business in the state would effectively overrule them in practice. Justice Barrett’s

It remains to be seen whether the dissent is correct that Mallory will eviscerate limits on jurisdiction over corporations engaged in interstate business and will produce an explosion of forum shopping. Five justices agreed that the Pennsylvania statute did not violate the Due Process Clause. However, Justice Alito expressed his view that the Pennsylvania statute likely does violate the structure of the Constitution and in particular the dormant commerce clause. The case has been remanded to the Pennsylvania Supreme Court to consider these arguments. Thus, we might see Mallory back in the Supreme Court in the near future.

Shawn Miller

U n i v e r s i t y o f Sa n D i e g o S c h o o l o f L aw

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Lisa

Ramsey Professor of Law

VI.

Dog Toys, Trademarks, and Free Speech in Jack Daniel’s v. VIP Products

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n Jack Daniel’s Properties, Inc. v. VIP Products LLC, Jack Daniel’s accused VIP of infringing and diluting its trademark rights by selling a dog chew toy that poked fun at the company’s famous brand of whisky. The toy featured a similar black-label design and shape, a spaniel dog’s face above “Bad Spaniels,” and jokes about dog excrement. In a unanimous opinion written

by Justice Kagan, the Supreme Court held that if an accused infringer uses another’s brand name or packaging design as a trademark to designate the source of its own goods, this fact will limit the defensive doctrines than can be invoked in a trademark lawsuit. The Court declined to decide whether any specific speech-protective doctrine created by judges should be used to resolve conflicts like this between trademark and free speech rights. Still, the Court’s decision suggests it believes the First Amendment limits the scope of trademark rights even if the justices do not currently agree on the best method for protecting expressive values in trademark law.

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A trademark owner can prevail under the infringement provisions of the Lanham Act if it proves that the defending party is using an identical or similar mark in connection with its goods or services in a manner that is “likely to cause confusion” about the product’s source or the parties’ business relationship.

Courts normally use a multi-factor likelihood of confusion test developed by judges to make this determination, and often decline to decide whether a certain use is likely to cause confusion on a motion to dismiss because this is a fact-intensive, context-specific analysis.

If the allegedly infringing mark is used within the title or content of an expressive work that conveys ideas or viewpoints, however, courts in the Ninth Circuit may dismiss the lawsuit under a different speech-protective trademark test first created by the Second Circuit in Rogers v. Grimaldi and later adopted by the Ninth Circuit in Mattel v. MCA Records.

Under the Rogers test, the Lanham Act cannot

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apply to use of another’s name or mark within an expressive work unless the use is either (1) not artistically relevant to the underlying work or (2) explicitly misleads consumers as to the source or content of the work. The Rogers test protects First Amendment interests in trademark law by allowing speech-harmful trademark disputes to be resolved early in litigation before costly discovery or an expensive trial. The Ninth Circuit agreed with VIP that the Rogers test should apply to VIP’s expressive use of Jack Daniel’s marks and that its humorous message displayed on a dog toy was a “noncommercial use” of the marks that fell outside the scope of the dilution statute.

Trademark attorneys will likely advise their clients to think carefully before claiming trademark rights in brand parodies or other messages that incorporate another’s trademark.

The Supreme Court disagreed. It concluded that VIP claimed trademark rights in its Bad Spaniels design and held that application of the stringent Rogers test for infringement liability “is not appropriate when the accused infringer has used a trademark to designate the source of its own goods—in other words, has used a trademark as a trademark.” The Court declined to decide whether the Rogers test or a different “threshold First Amendment filter” applies when another’s mark is used within a creative work or is displayed in a decorative manner on a toy, T-shirt, or other type of expressive merchandise.

plausibly allege of a likelihood of confusion” due to the “dissimilarity in the marks or various contextual considerations.”

A concurring opinion, written by Justice Sotomayor and joined by Justice Alito, urged lower courts to treat the results of surveys that purport to show a likelihood of consumer confusion “with particular caution.” They stressed the importance of not “giving uncritical or undue weight to surveys” when an alleged trademark infringement involves a parody, as the “answers may reflect a mistaken belief among some survey respondents that all parodies require permission from the owner of the parodied mark.” They cautioned that relying on survey results that reflected only confusion about such approval, or “misunderstanding[s] of the legal framework,” “would risk silencing a great many parodies, even ones that by other metrics are unlikely to result in the confusion about sourcing that is the core concern of the Lanham Act.”

VIP could still win the infringement claim on remand, as the Court explained that a “trademark’s expressive message—particularly a parodic one, as VIP asserts—may properly figure in assessing the likelihood of confusion.”

Per the Court, “that kind of message matters in assessing confusion because consumers are not likely to think that the maker of a mocked product is itself doing the mocking.”

The Court also clarified that a district court can grant a motion to dismiss a trademark infringement claim if “a plaintiff fails to

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Ultimately, the Jack Daniel’s opinion suggests that the justices may approve of the focus on source confusion in the “explicitly misleads” prong of the Rogers test when First Amendment interests are implicated in a trademark lawsuit.

The Court said this is the type of confusion “most commonly in trademark law’s sights,” “the bête noire of trademark law,” and the “cardinal sin under the law.” During oral argument, some justices seemed wary of having judges or juries determine what is art or what uses of marks are “artistically relevant” under Rogers, but the Court did not discuss these concerns in the majority opinion. In a concurring opinion joined by Justices Thomas and Barrett, Justice Gorsuch expressed doubts about the provenance and correctness of some parts of the Rogers test and noted that “lower courts should be attuned to that fact.” He may have been referring to this first “no artistic relevance” prong of the Rogers test when he made these comments.

Finally, the Jack Daniel’s Court determined that VIP could not take advantage of the “noncommercial use of a mark” exemption from dilution liability by claiming its humorous use of the marks was not pure commercial speech. The Court held this rule cannot be broadly construed to include “every parody”

because such an interpretation would conflict with the separate “fair use” exclusion in the Act that applies to parody, criticism, and other commentary, which “does not apply when the use is ‘as a designation of source for the person’s own goods or services.’” The Court declined to decide “how far the ‘noncommercial use’ exclusion goes,” but it held “that the noncommercial exclusion does not shield parody or other commentary when its use of a mark is similarly source-identifying.” The Court’s new non-trademark use requirement for application of the “noncommercial use” exclusion in the contexts of parody, criticism, and commentary is surprising, because there is no such limitation in the statute’s text and there is an alternate way to interpret these speech-protective rules in the dilution law.

After the Jack Daniel’s decision, VIP could still win on the dilution by tarnishment claim on the ground that this law is an unconstitutional regulation of nonmisleading commercial speech that targets offensive expression protected by the First Amendment. Regardless of what happens in this dispute, trademark attorneys will likely advise their clients to think carefully before claiming trademark rights in brand parodies or other messages that incorporate another’s trademark.

Lisa Ramsey

U n i v e r s i t y o f Sa n D i e g o S c h o o l o f L aw

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Michael

Rappaport Hugh and Hazel Darling Foundation Professor of Law; Director, Center for the Study of Constitutional Originalism

VII.

Tackling a $400 Billion Question in Biden v. Nebraska

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n a much-anticipated case, the Supreme Court in Biden v. Nebraska decided that the Biden Administration’s comprehensive plan for canceling student debt was not authorized by statute. Chief Justice Roberts authored the decision for the six justices in the majority; his opinion was accompanied by an important concurrence by Justice Amy Coney Barrett.

A strong dissent by Justice Elena Kagan was joined by the other two progressive justices.

In August 2022, towards the end of the pandemic, the Biden Administration announced a comprehensive student loan forgiveness plan based on its authority to respond to a “national emergency.” The Congressional Budget Office estimated the plan would cancel about $430 billion in debt principal.

There were two main issues in the case: whether the state of Missouri had standing to challenge the plan and whether the Department of Education’s statute authorized the cancellation

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of the debt. Prior to the decision, the standing question was generally thought to be the more difficult one for those challenging the plan.

The key standing issue was whether the state of Missouri had suffered a cognizable injury as a result of the cancellation of the student debt.

While the Missouri Higher Education Loan Authority (“MOHELA”), which administered the loans, would clearly have had standing to sue because it would lose an estimated $44 million from the cancellation, it had not chosen to file a lawsuit.

The Court, however, concluded that the state of Missouri could sue for the harm to MOHELA. The Court noted that MOHELA was a “public instrumentality” of Missouri, established by the state to perform the “essential public function” of helping Missourians access student loans.

MOHELA’s profits help to fund education in Missouri, and it was subject to state supervision and control. Consequently, the Court concluded that the state of Missouri could challenge the

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cancellation, even though MOHELA was a separate corporation.

The Court concluded that the plan exceeded the Secretary’s authority both to “modify” and “waive” provisions. Relying on a prior case as well as the ordinary meaning of “modify,” the Court interpreted that term as allowing the power only “to change moderately or in a minor fashion,” rather than as encompassing the power to make “basic and fundamental changes in the scheme designed by Congress.”

The merits question turned on whether the Secretary of Education had statutory authority to issue the debt cancellation plan. The Court concluded that the Secretary did not have such authority based on ordinary methods of statutory interpretation and on the separate ground of the major questions doctrine.

The Court noted that the statute authorized the Secretary to discharge a borrower’s liability only “under certain narrowly prescribed circumstances,” such as a borrower’s death or bankruptcy or a borrower’s inability to complete a program due to a school’s closure. By contrast, the Secretary’s forgiveness of $10,000 or $20,000 for all borrowers who satisfied an income cap applied irrespective of circumstances. Thus, the forgiveness worked a major change in the statute.

For statutory authority, the Secretary relied upon the HEROES Act, which empowered him to “waive or modify any statutory or regulatory provision applicable to … student financial assistance programs … as the Secretary deems necessary in connection with a war or other military operation or national emergency.” The question was whether the loan forgiveness plan constituted a waiver or modification within the meaning of this statute.

Nor, according to the Court, could the plan be justified under the Secretary’s authority to “waive” provisions. The Court understood waiver to mean eliminating or excusing compliance with a legal requirement or provision. But since the Secretary’s plan adopted new rules, such as particular sums to be forgiven and incomebased eligibility requirements, waiver authority alone could not support those new rules. Instead, the Secretary had to rely on his modification authority to adopt those new rules. But since those rules would effect a major change, they could not be regarded as modifications.

The decision is likely to prove consequential in future challenges to executive branch actions with broadscale economic or political effects, including agency decisions that affect federal spending.

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After holding that ordinary statutory interpretation principles did not justify the Secretary’s plan, the Court then moved to an alternative ground for its holding: the major questions doctrine. Under that controversial doctrine, the Court asks whether there is “clear congressional authorization” to justify an agency’s assertion of certain exceptional

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claims of power. Where the agency claims broad authority that has not been historically asserted under the statute, and where the claimed authority is economically and politically significant, the Court will find “reason to hesitate before concluding that Congress meant to confer such authority.” Since the Secretary had exercised much narrower authority prior to this program and since the program was both economically and politically significant, the Court concluded that the statutory provisions did not provide the clear authority necessary to justify the program.

In an importance concurrence, Justice Amy Coney Barrett sought to root the major questions doctrine in the ordinary rules of statutory interpretation. In her view, “the doctrine serves as an interpretive tool reflecting common sense as to the manner in which Congress is likely to delegate a policy decision of such economic and political magnitude to an administrative agency.”

Finally, Justice Kagan dissented from the Court’s decision on all three grounds, arguing that Missouri lacked standing, the statute authorized the Secretary’s loan forgiveness plan, and the major questions doctrine was “made-up.” Justice Kagan claimed that the Court’s opinion exceeded the proper role of the judiciary, which prompted a rebuke from Chief Justice Roberts and a further response from Justice Kagan.

Apart from halting the Biden student loan forgiveness program, the decision is likely to prove consequential in future challenges to executive branch actions with broad-scale economic or political effects, including agency decisions that affect federal spending. The decision suggests that a majority of the justices agree that such regulatory actions must rest upon clear statutory authorization, though they may disagree on what that test requires and the reasons for the test.

Michael Rappaport

U n i v e r s i t y o f Sa n D i e g o S c h o o l o f L aw

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Maimon

Schwarzschild Professor of Law

VIII.

Students for Fair Admissions v. Harvard College: An Endpoint to Race-Preferential Affirmative Action?

A

s the Supreme Court’s term drew to a close, the Court issued its anxiously awaited decision in the affirmative action admissions cases, Students for Fair Admissions v.

Harvard College and Students for Fair Admissions v. University of North Carolina. Harvard is a private university which receives federal funds, and as such is subject to the prohibition of discrimination by race or national origin under Title VI of the Civil Rights Act of 1964; the University of North Carolina (UNC) is a state university, and as such is bound by the Constitution’s Fourteenth Amendment.

The majority of the Court proceeded on the basis that the requirements of Title VI and the Fourteenth Amendment are the same in a discrimination case.

receive a significant “plus” based on their race. Harvard and UNC, in other words, like many other colleges and universities, apply different standards—often dramatically different standards—to applicants, depending on the applicant’s race and ethnicity. By a 6–3 vote, the Court held that racially discriminatory affirmative action admissions are unconstitutional and illegal.

The Supreme Court’s sharply divided encounters with race-preferential affirmative action go back at least to the famous Bakke case, decided in 1978. In that case, four justices voted that such racial preferences were legal under limited circumstances; four voted that they were illegally discriminatory. Justice Lewis Powell, writing for himself alone in casting the deciding vote, wrote that “diversity,” for purposes of improving the academic experience, might sometimes justify these preferences, although other possible justifications—such as trying to remedy past societal discrimination—would

Both Harvard and UNC grant racial and ethnic preferences in their admissions decisions.

The Court noted that Harvard “take[s] race into account” at virtually every stage of its admissions process; at UNC, applicants may

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not. Justice Powell held, at least nominally, to the well-established “strict scrutiny” standard for racial discrimination, which requires that any such discrimination must be narrowly tailored to a compelling governmental interest in order to be lawful. In any other context, it is practically always unconstitutional for the government to treat people differently on the basis of their race.

seats at selective universities, and for every applicant favored because of race, another—like the Asian-American applicants to Harvard— must be disfavored. And to use race as a proxy for human or intellectual “diversity” relies on racial stereotypes: the idea that people “think alike” because of their race. Finally, the Court noted, there was no end in sight for “diversity” discrimination—despite the insistence, even by the bare majority of justices who condoned it in Grutter, that it must not go on forever.

A quarter of a century later, in the 2003 Grutter decision, the Court adopted Justice Powell’s position in Bakke, albeit by a bare 5–4 majority, and upheld “race-conscious” admissions for purposes of “diversity” at the University of Michigan Law School. The five justices in the Grutter majority nonetheless recognized that race-based government action is “dangerous,” no matter whom it purports to help. It would therefore have to survive “strict scrutiny” in order to pass muster. The decision emphasized that race-based admissions must have an end point in time; the Grutter Court stated that it “expect[ed]” that the use of racial preferences would “no longer be necessary” after a further 25 years.

Twenty years on, Chief Justice Roberts delivered the majority opinion in this year’s Harvard and UNC cases. The decision concluded that racebased admissions preferences like those used

by Harvard and UNC fail strict scrutiny, even by the standards set out in the Grutter decision.

The Court reasoned that the usual justifications for race-based differential standards were too generalized and amorphous for the courts to assess them, or even to know when they have been achieved, hence precluding effective “strict scrutiny.” Moreover, the race-based admissions systems violated the twin constitutional requirements that they never operate as a “negative” and that they must not rely on racial stereotypes. There are a limited number of

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The decision concluded that racebased admissions preferences like those used by Harvard and UNC fail strict scrutiny, even by the standards set out in the Grutter decision.

Justice Thomas filed an extensive concurring opinion, fully endorsing Chief Justice Roberts’ majority opinion. He added a discussion of the original intent and meaning of the Fourteenth Amendment, finding that “substantial evidence suggests that the Fourteenth Amendment was passed” in order to “forbid[] ‘all legal distinctions based on race and color.’” Justice Thomas emphasized that the constitutional “strict scrutiny” standard for race discrimination is meant to be rigorous,

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and he noted the anomaly of “deferring” to the justifications asserted by a party—such as Harvard or UNC—which proposes to discriminate. Justice Thomas also noted the strong evidence that race preferences harm even their putative beneficiaries, by mismatching minority students—who might have done well at schools where their qualifications were near the middle of the class—to schools where their qualifications are well below average and where they are liable to do poorly. He warned that widespread racial preferences tend to create “a quota- and caste-ridden society steeped in race-based discrimination,” and concluded that the Court had rightly—“for all intents and purposes”—overruled Grutter and the Court’s narrowly-divided past endorsement of such preferences.

“exceptionalism” for university admissions, and that admissions practices like those of Harvard and UNC—driven “even in part” by race—cannot survive strict scrutiny under the Fourteenth Amendment.

Justice Gorsuch also filed a substantial concurring opinion, in which Justice Thomas joined, emphasizing that Title VI of the Civil Rights Act of 1964 plainly and “profound[ly]” requires that “a recipient of federal funds may never discriminate based on race, color, or national origin—period.”

Whereas the Equal Protection Clause of the Fourteenth Amendment addresses all manner of government-drawn distinctions, so that the Court has applied different degrees of judicial scrutiny for different kinds of classifications— strict scrutiny for racial discrimination, for example, but rational-basis review for more prosaic classifications—Title VI targets only the three prohibited forms of discrimination, and prohibits them outright. Justice Gorsuch fully joined the majority, however, agreeing that the Equal Protection Clause affords no

Chief Justice Roberts’s majority opinion concluded that nothing prohibits universities “from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise”—so long as this consideration is genuinely on an individual basis, not merely on the basis of race. In a sense, this is a truism. There is no law against “discriminating” on the basis of character, or on a judgment of how a person meets life’s challenges. It remains to be seen however, whether universities and other institutions—many of them seemingly devoted fervently to racial preferences—may endeavor to circumvent the Court’s decision on some such basis. The full practical effect of the Court’s decision, therefore, remains to be seen in light of further developments.

Justices Sotomayor and Jackson filed dissents, which Justice Kagan joined. The dissenting justices rejected essentially all the premises and conclusions of the majority and concurring opinions. It is perhaps a measure of the deepening divide over issues like affirmative action that whereas the liberal-leaning justices who wrote to endorse preferences in Bakke and Grutter nonetheless fully acknowledged their drawbacks and dangers, there was little or no such acknowledgment in the dissents in the Harvard and UNC cases.

Maimon Schwarzschild U n i v e r s i t y o f Sa n D i e g o S c h o o l o f L aw

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Steven

Smith Warren Distinguished Professor of Law; Co-Executive Director of the Institute for Law & Religion and the Institute for Law & Philosophy

IX.

A Collision Between Free Speech and Anti-Discrimination in 303 Creative LLC v. Elenis

P

eople care about weddings. Passionately.

So it is not surprising that weddings have become the setting for impassioned conflicts over cherished constitutional commitments implicating freedom of speech, freedom of religion, and equality. 303 Creative LLC v. Elenis is the latest of these conflicts to be addressed by the Supreme Court.

The case was brought by a custom website designer, Lorie Smith, who wanted to expand her Colorado-based business into designing personalized websites for weddings. As a devout Christian, Smith refuses to create websites or convey messages that conflict with her religious convictions; given her belief that marriage must be between a man and a woman, she accordingly did not want to prepare websites for same-sex weddings. Foreseeing that this position would put her in violation of the Colorado Anti-Discrimination Act, Smith sought an injunction enjoining enforcement of the act against her. She argued that enforcement would

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violate her freedom of expression by compelling her to affirm a message she does not believe.

Smith’s argument failed in the district court and the Tenth Circuit. It fared better with the Supreme Court—or at least with six of the justices. But the passion generated by such conflicts was on full display in a dissenting opinion by Justice Sonia Sotomayor and joined

by Justices Kagan and Jackson.

The case was in one sense a rerun of the much-discussed Colorado baker case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, which was decided in 2018. The Court resolved Masterpiece Cakeshop on narrow, case-specific freedom of religion grounds; the Court deferred consideration of the free speech question. In Creative 303, though, the Court reached that question.

Justice Gorsuch’s majority opinion vigorously reaffirmed the “no compelled expression” idea

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this history by recounting stories of individual people who had suffered from discrimination.

And she accused the majority of betraying the commitment to equality.

Those resisting application of antidiscrimination laws describe the cases as about expression; conversely, advocates favoring enforcement say that what is at issue is conduct.

that was most eloquently articulated in West Virginia Board of Education v. Barnette (which Gorsuch repeatedly cited). “If there is any fixed star in our constitutional constellation,” Barnette had declared, “it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” If Lorie Smith were compelled (on pain of penalty or of sacrificing part of her livelihood) to promote and celebrate same-sex weddings, Justice Gorsuch reasoned, she would thereby be forced to express something she does not believe. Justice Gorsuch chided the dissent for a lack of commitment to this long-standing principle.

For her part, Justice Sotomayor pressed the equality theme in her dissent. She reviewed the country’s painful history of prejudice and discrimination against blacks, women, and LGBTQ individuals, and praised the efforts of courts and legislatures to overcome such discrimination. Justice Sotomayor personalized

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The clashing arguments in such cases by now follow a familiar pattern based on contrasting categories and characterizations. Those resisting application of antidiscrimination laws describe the cases as about expression; conversely, advocates favoring enforcement say that what is at issue is conduct. The resisters perceive the product or service in question as a specific kind of website—or wedding cake, or floral arrangement—celebrating particular kinds of weddings (in these cases, same-sex weddings).

On this view, the designer or baker or floral arranger has no objection to serving anyone based on sexual orientation; the objection is only to communicating a particular message (which he or she declines to express regardless of who is asking for it). Conversely, the enforcers describe the product or service more generically as simply a wedding website or cake or floral arrangement. And they insist that the designer or baker or floral arranger is refusing to sell the same product—the same product under their more generic description—merely because of the sexual orientation of the would-be customer.

So, how to choose between these competing characterizations? I happen to think that the resisters’ descriptions are more faithful to the actual facts. (Full disclosure: I helped to prepare amicus briefs on the free speech issue in both Masterpiece Cakeshop and 303 Creative, as well as in Arlene’s Flowers, an earlier case involving a florist from Washington state). Ultimately, though, the matter comes down to how one values, prioritizes, and attempts to reconcile the competing constitutional commitments. That evaluation, in turn, will depend on one’s vision of what sort of country we are and aspire to be.

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In 303 Creative, however, the choice between constitutional commitments and inconsistent characterizations was at least affected by stipulations that the parties had made early in the case. As the majority explained, the parties had stipulated that Lorie Smith “‘will gladly create custom graphics and websites’ for clients of any sexual orientation,” that “[a]ll of the graphic and website design services Ms. Smith provides are ‘expressive,’” that her “designs are ‘original, customized’ creations that ‘contribut[e] to the overall messages’,” and that Smith “will not produce content that ‘contradicts biblical truth’ regardless of who orders it.”

These stipulations reenforced the majority’s characterizations, by which the case was more about compelled expression than about equality.

Parties in future cases will no doubt be wary of making similar stipulations. Moreover, the Court’s decision turns entirely on the proposition that Smith’s website services were “expressive” and “pure speech”—a matter that has been and will be contested in other kinds of cases. Although the free speech side prevailed in 303 Creative, therefore, the blissful unions we call weddings will likely continue to be a source of bitter and sometimes indignant disputation.

Steven Smith

U n i v e r s i t y o f Sa n D i e g o S c h o o l o f L aw

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Mary Jo

Wiggins Professor of Law

X.

In Bartenwerfer v. Buckley, Textualism Continues its Reign in Bankruptcy Law

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awyers are familiar with the legendary maxim “hard cases make bad law.” In Bartenwerfer v. Buckley, the United States Supreme Court may have proved the validity of an alternative: “Easy cases make good law.” In Bartenwerfer, the Court unanimously held that Section 523(a) (2)(A) of the Bankruptcy Code (“the Code”) precludes an individual debtor from discharging a debt obtained by fraud, regardless of the debtor’s own culpability.

Bartenwerfer’s significance goes beyond clarifying the proper reading of Section 532(a)(2)(A). The decision is also important because it further cements textualism as the Court’s dominant methodology for interpreting the Code.

The facts in Bartenwerfer resemble a home renovation reality show. A couple, Kate and David Bartenwerfer, bought a house in San Francisco and took title jointly, with the intention of acting as business partners to remodel the house and later sell it for a profit.

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David did almost all of the work on the project.

Once the house was finished, the Bartenwerfers sold it to Kieran Buckley. After the sale, Buckley discovered at least four material defects that the Bartenwerfers had not disclosed prior to the sale (despite warranting they had). Buckley sued the Bartenwerfers in state court, alleging breach of contract, negligence, and nondisclosure of material facts. The jury found for Buckley.

The Bartenwerfers were liable for more than $200,000 in damages.

Unable to pay Buckley and their other creditors, the Bartenwerfers filed for Chapter 7 bankruptcy. If the Bartenwerfers’ debt to Buckley had been a normal one, it would be dischargeable—meaning that the Bartenwerfers would not be personally liable for it, and future efforts to collect the debt would be void. Unfortunately for the Bartenwerfers, Buckley objected to discharge of the debt under Section 523(a)(2)(A) of the Code, which reads, in pertinent part: “A discharge [under the Code]

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does not discharge an individual debtor from any debt for money … to the extent obtained by … false pretenses, a false representation, or actual fraud.”

Bartenwerfer further cements textualism as the Court’s dominant methodology for interpreting the Code.

After a trial, the bankruptcy court held that the debt to Buckley was non-dischargeable, and the court imputed David’s intent to Kate because the two had formed a legal partnership on the house project. The bankruptcy appellate panel reversed on the issue of Kate’s liability. After some procedural wrangling, the case came to the Ninth Circuit, which affirmed the original bankruptcy court ruling, meaning that Kate could not discharge the debt. The United States Supreme Court granted certiorari to resolve the issue.

Writing for a unanimous court, Justice Amy Coney Barrett focused on the text of Section 523(a)(2)(A) and found its application straightforward. Justice Barrett reasoned that the use of the passive construction in the statute (“to the extent obtained by”) trained the reader’s attention to an event, not to a designated actor.

Justice Barrett then observed that fraud—both statutory and common law—allowed for the misconduct of David to be imputed to Kate since they were partners in the underlying venture.

Justice Barrett brushed aside Kate’s efforts to engage the court in a textual analysis more favorable to her position.

Seeking safe harbor, Kate’s advocates argued that liability for her would be inconsistent with bankruptcy’s “fresh start” policy. Justice Barrett rejected this for two reasons. First, she noted that while bankruptcy is intended to provide relief for honest but unfortunate debtors, it also serves other ends. Second, it was underlying state law, not bankruptcy law, which made Kate liable for David’s fraud.

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Bartenwerfer illustrates the Court’s tendency in bankruptcy cases to reach results that, as Justice Barrett put it, are “plainly expressed by the text and ordinary tools of interpretation.”

The semantic canon on display was the “passive voice” construction. Justice Barrett read Section 523(a)(2)(A)’s use of the inert phrase “obtained by” to signal the irrelevance of a specific actor.

Consistent with this textualist stance, Justice Barrett expressed strong skepticism toward Kate’s policy argument, describing it as a “last ditch effort” that “earns credit for color but not much else.”

Beyond what it signals about the Court’s preferred interpretive methodology, Bartenwerfer makes clear that in joint dischargeability cases involving agency or partnership relationships, the “empty-head, pure-heart” excuse won’t work for debtors like Kate. This is a welcome result in light of Section 523(a)(2)(A)’s clear language and the legal context of common law fraud involving parties with fiduciary or confidential relationships. Bankruptcy judges should appreciate having this issue settled just as consumer bankruptcy filings begin

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with the debtor. Justices Sonia Sotomayor and Ketanji Brown Jackson joined the opinion with the understanding that it was not a ruling on that issue.

to rise nationwide. However, what remains unclear is whether the holding of Bartenwerfer extends to a case of alleged fraud by an actor who has no agency or partnership relationship

Mary Jo Wiggins

The Law School is grateful to the law librarians at USD’s Pardee Legal Research Center, and in particular to Elizabeth Parker and Sasha Nuñez, for their hard work on these essays.

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