State Attorneys General Second Amendment Duel - Will the Affirmative Action Application Be Rejected? - Tech Companies Could Be Held Liable for Posts

• Pages: 10-10
• Date: 01 January 2023
• Author: Hon. Oran F. Whiting (Ret.)
• Subject Matter: Civil Law

State Attorneys General Second Amendment Duel

Will the Armative Action Application Be Rejected?

Tech Companies Could Be Held Liable for Posts

U.S. SUP REME COUR T

Constitutional Law

The Supreme Court will decide whether

to adopt a North Carolina state legisla-

tive argument that state legislatures are

not bound by their state constitutions

when enacting election laws or draw-

ing legislative district maps. If adopted,

state legislatures could enact any elec-

tion law or district map without state

courts ruling on whether it violates a

state’s constitution.

The Court has previously ruled that

partisan gerrymandering claims can-

not be challenged in federal courts.

Accepting North Carolina’s argument

would leave little to no recourse to chal-

lenge a partisan gerrymander in state

courts. Moore v. Harper, No. 21-1271.

Civil Rights

The Court will consider whether col-

leges and universities may consider

race as a factor in admissions. As

a public university, the University

of North Carolina is bound by the

Constitution’s Equal Protection Clause

and Title VI of the Civil Rights Act of

1964, which bars race discrimination by

institutions that receive federal money.

The University of North Carolina

is accused of discriminating against

white and Asian applicants by favoring

Black, Hispanic, and Native American

applicants. The university responded

that its admissions policies fostered

educational diversity and were lawful

under long-standing Court precedents.

The case against Harvard, a pri-

vate institution subject to the statute

only because it receives public funds,

contains an additional element miss-

ing in the North Carolina case, accus-

ing the university of discriminating

against Asian American students by

subjectively gauging certain charac-

ter traits and creating an admissions

ceiling. The group behind both chal-

lenges is represented by a law f‌irm

composed of several former clerks of

Justice Clarence Thomas, a frequent

critic of armative action. Students

for Fair Admissions v. Harvard, No.

20-1199; Students for Fair Admissions

v. University of North Carolina, No.

21-707.

Copyright/Fair Use

The Court will consider whether Andy

Warhol infringed on a photographer’s

copyright when he created a series

of silkscreens of the musician Prince.

A district court previously ruled in

Warhol’s favor because his work had

a dierent meaning and message

than the photographer’s. The Second

Circuit reversed, ruling that a new

meaning or message is not enough to

qualify for fair use.

The issue in the case surrounds

the fair use doctrine in copyright law,

which permits the unlicensed use of

copyright-protected works in cer-

tain circumstances. The Court must

properly balance copyright law with

the First Amendment to protect art-

ists who have drawn inspiration from

preexisting works. Andy Warhol

Foundation for the Visual Arts, Inc. v.

Goldsmith, et al., No. 21-869.

Tech/Social Media Liability

Many are anticipating the Supreme

Court’s decision regarding Section 230

of the Communications Decency Act

of 1996, which generally shields web-

sites from liability for users’ posts on

their platforms and for content that

users view due to algorithms. Two

cases could lead to the alteration of

internet content moderation.

Gonzalez arose from the killing of

129 people during coordinated attacks

in Paris in November 2015. The father

of one of the victims argued that

YouTube’s recommendation algorithm

violates the Anti-Terrorism Act by aid-

ing the attacking group’s recruitment

eorts by promoting its videos to users.

AND MORE . . . BY HO N. ORAN F. WHITI NG (RET.), LITIGATION NEWS ASSOCIATE EDITOR

In Taamneh, the family of a victim

of a separate attack carried out by the

identical group in Gonzalez alleges

that social media companies provided

material support for terrorism and did

not do enough to check the group’s

presence on their platforms. Gonzalez

v. Google LLC, No. 21-1333; Twitter v.

Taamneh, No. 21-1496.

U.S. DEPAR TMENT OF JUS TICE

Antitrust

The Justice Department has success-

fully blocked Penguin Random House’s

proposed $2.2 billion acquisition of

Simon & Schuster. The U.S. District

Court for the District of Columbia ruled

in favor of the Justice Department, f‌ind-

ing that the proposed merger would

substantially lessen competition in the

market for the U.S. publishing rights to

books. In November 2021, the Justice

Department sued to stop the merger

under Section 7 of the Clayton Act. U.S.

Dep't. of Justice v. Bertelsmann SE &

Co. et al., Civ. Action No. 21-2886-FYP.

STATE S

Second Amendment

Twenty-four state attorneys general

have written Visa Inc., Mastercard Inc.,

and American Express warning the

companies against implementing their

plan to add a code to identify when

purchases are made at f‌irearms retail-

ers. The attorneys general argue that

the plan could lead to the misuse of

consumer data and would not protect

the public. The attorneys general of

New York and California believe the

card companies should begin tracking

gun sales and f‌lagging suspicious pur-

chases to law enforcement. The letter’s

authors threaten to launch investiga-

tions into the companies if they move

forward with the gun-shop code.

WINTER 202 3 • VOL. 48 NO. 2

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Published in Litigation News Volume 48, Number 2, Winter 2023. © 2023 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or

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