Federalist Society Practice Groups Podcasts

In Packingham v. North Carolina, the Supreme Court will decide whether the First Amendment bars a state from banning citizens from accessing social media sites like Facebook and Twitter. A North Carolina state makes it a felony for any person on the state's registry of former sex offenders to "access" a wide array of websites--including Facebook, YouTube, and nytimes.com--that enable communications among users if the site is known to allow minors to have accounts. The statute does not require the state to prove the defendant has actually had contact with a minor, intended to do so, or accessed a website for any illicit or improper purpose. ?Lester Packingham was convicted of violating the law for a Facebook post in which he celebrated the dismissal of a traffic ticket, declaring "God is Good!" Packingham and his supporters contend that law amounts to a sweeping, overbroad, and vague ban on protected speech untailored to any legitimate interest and unjustified by any compelling need. -- Featuring: Ilya Shapiro, Senior Fellow in Constitutional Studies, Cato Institute.

On January 21, President Trump signed an executive order “Protecting the nation from foreign terrorist entry into the United States.” The order suspended immigrant and nonimmigrant entry into the country by citizens of seven majority Muslim countries: Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen for 90 days. It also suspended refugee admission into the United States for 120 days, and barred entry of Syrian refugees until further notice. The stated order’s purpose was to “ensure that those admitted to this country do not bear hostile attitudes toward it and its founding principles.” -- The Washington State Attorney General filed a lawsuit against the order in District Court citing harm to Seattle residents. Judge James Robart in the Western District of Washington issued a restraining order on February 3 halting President Trump’s executive order nationwide. The Department of Justice appealed the restraining order to the Ninth Circuit Court of Appeals, which rejected the Justice Department’s appeal for an emergency stay. -- David Bier of CATO and Andrew C. McCarthy of National Review, who have both written on the topic (see their pieces here and here respectively), joined activist Shireen Qudosi, Director of Muslim Matters with America Matters, to discuss the legality of the executive order in the second episode of our Executive Orders Teleforum Series. -- Featuring: Andrew C. McCarthy, Senior Fellow, National Review Institute; David J. Bier, Immigration Policy Analyst, Cato Institute’s Center for Global Liberty and Prosperity; and Shireen Qudosi, Director of Muslim Matters, America Matters.

The second Teleforum in our Security Partnership Series will examine the complex mechanics and ethics of cyber partnerships and many important questions. Should government agencies be enlisting private security firms to help prevent hacking into their own systems? On the other hand, should insurance companies require private company customers to do the same? Should private corporations, particularly financial institutions, be required to report hacking incidents to the federal government, and, if so, to what agency, for what purpose? Consumer protection? Economic security? What are the lawful responses to being hacked for government or industry? Is the best defense a good offense? How effective are today’s consumer-level encryption algorithms? Does public/private cooperation on the cybersecurity front impact private companies’ willingness and ability to cooperate with intelligence investigations under the supervision of the Foreign Intelligence Surveillance Court? -- As behavior in the cyber domain has perhaps become the most ubiquitous asymmetric threat to modern life, governments, companies, and individuals each have unprecedented exposure to theft and sabotage. Home networks are compromised through connected thermostats; commercial airliners’ flight controls have been hacked through in-flight entertainment systems; passwords and credit card data are stored on servers that are the targets of daily hacking attempts, with that data often appearing for sale online. -- Featuring: Prof. Catherine B. Lotrionte, Director of the Institute for Law, Science and Global Security and Visiting Assistant Professor of Government and Foreign Service, Georgetown University and Adam Segal, Ira A. Lipman Chair, Emerging Technologies & National Security and Director of the Digital & Cyberspace Policy Program, Council on Foreign Relations (CFR). Moderator: Adam Pearlman,Special Advisor to the International and National Security Law Practice Group.

In 1996, Congress passed the Congressional Review Act (CRA). Before an executive agency rule—broadly defined to include agency guidance documents—can take effect, the CRA requires the agency to submit it to Congress and the Government Accountability Office. The CRA provides fast-track procedures for Congress to overrule any rule with a joint resolution of disapproval if the President signs it into law (or Congress overrides any veto). The expedited procedures may be used during the first 60 session days after the rule is submitted and during the first 60 session days of the next session if the rule was submitted near the end of the previous session. The only successful invalidation of a regulation prior to this year was in 2001, when the Department of Labor ergonomics rule issued at the end of the Clinton Administration was voided. -- In the last few months, there has been renewed attention to the CRA, with Congress’ action to overrule many more rules. And some have asserted that the law may have much broader implications for rules passed over the past 8 years and not previously sent to Congress as the CRA requires. -- Former Congressman David McIntosh, who sponsored the CRA, and former congressional counsel to Mr. McIntosh, Todd Gaziano, will join us to discuss the ins and outs of the CRA and its potential applications in the coming months. This Teleforum is the second installment in our Legal Options for the New Administration series. -- Featuring: Hon. David M. McIntosh, President of the Club for Growth and Vice Chairman of The Federalist Society and Todd F. Gaziano, Senior Fellow in Constitutional Law and Executive Director of Pacific Legal Foundation’s DC Center.

According to the Competitive Enterprise Institute, over 97% of mergers and acquisitions result in "strike suits," litigation seeking to enjoin a merger that often quickly settles for attorneys' fees and supplemental disclosures to shareholders. In In Re: Walgreen Co. Stockholder Litigation, 832 F.3d 718, a recent case over such a settlement, Judge Richard Posner called the practice a "racket," and the Seventh Circuit rejected the lawsuit’s claims. Meanwhile, Delaware and New York courts have come out on opposite sides of the issue. -- Ted Frank of the Competitive Enterprise Institute, who successfully argued Walgreen and has multiple appeals on the subject pending in other jurisdictions, discussed developments in the area over the last year and answer questions. -- Featuring: Theodore H. Frank, Senior Attorney & Director, Center for Class Action Fairness (CCAF), CEI.

On February 27, the Supreme Court will hear oral argument in Packingham v. North Carolina. This First Amendment case deals with whether a state may bar citizens from accessing social media sites like Facebook and Twitter. A North Carolina state law makes it a felony for any person on the state's registry of former sex offenders to "access" a wide array of popular websites that enable communications among users if the site is known to allow minors to have accounts. The statute does not require the state to prove the defendant has actually had contact with a minor, intended to do so, or accessed a website for any illicit or improper purpose. In the trial court, the Defendant was convicted of violating the law for a Facebook post in which he celebrated the dismissal of a traffic ticket, declaring "God is Good!" Some contend that the law amounts to a sweeping, overbroad, and vague ban on protected speech untailored to any legitimate interest and is unjustified by any compelling need. -- Jonathan Sherman, Partner at Boies Schiller Flexner and Melissa Arbus Sherry, Partner at Latham & Watkins will provide a preview of this interesting case. -- Featuring: Jonathan Sherman, Partner at Boies Schiller Flexner and Melissa Arbus Sherry, Latham & Watkins.

In McLane v. EEOC the Supreme Court is being asked to resolve a circuit split regarding appellate court standard of review of district court decisions to quash or enforce an EEOC subpoena. -- Damiana Ochoa worked for McLane Company, a supply chain company. After returning from maternity leave, Ms. Ochoa was required to take a “physical abilities” test, which she failed three times. Subsequently, she was fired and Ms. Oschoa brought a gender discrimination claim against McLane. The district court denied part of one of the subpoenas EEOC issued to McLane. The 9th Circuit reversed, reviewing the district court’s decision to limit the scope of the EEOC subpoena “de novo,” which is contrary to the deferential review eight other appellate courts follow. The Supreme Court has been asked to resolve this circuit court split. -- Karen Harned, Executive Director of the National Federation of Independent Business Small Business Legal Center, attended oral argument and will join us to provide her impressions of argument, examine the case, and explore potential impacts of the upcoming decision on employers, employees, and the EEOC during this Courthouse Steps Teleforum conference call. -- Featuring: Karen Harned, Executive Director, National Federation of Independent Business Small Business Legal Center.

The American Bankers Association and Washington Federal, a bank holding company, have filed a suit against the United States government for reducing the amount of dividends paid to banks that own Federal Reserve stock. In the Federal Reserve Act of 1913, the Federal Reserve agreed to pay 6% annual dividends to stockholders of regional Federal Reserve Banks, but Congress decreased that amount to 2% in 2015 in the Fixing America’s Surface Transportation Act, or FAST Act, which appropriated the other 4% of would-be-dividends for highway funding. Proponents of the change argue that 6% dividends were exorbitant returns for the stock, and that banks are still guaranteed a positive return, even at 2%. -- Brett Shumate and Steve Obermeier of Wiley Rein, who represent the plantiffs in this case, joined us to discuss the pending litigation. -- Featuring: Stephen J. Obermeier, Partner, Wiley Rein LLP and Brett A. Shumate, Partner, Wiley Rein LLP.

Over the last fifteen years, homeland security has become a field unto itself. The United States Department of Homeland Security (DHS) has become the second-largest federal executive department in the number of people it employs, and includes three law enforcement agencies and a military service (the United States Coast Guard). But the heavy responsibility of keeping Americans safe at home extends well beyond the jurisdiction of that department alone. Still at the federal level, the Department of Justice has four law enforcement agencies of its own, the Department of Defense is authorized to support domestic law enforcement and disaster response operations under certain circumstances (consistent with the Posse Comitatus Act), and the Departments of State, Treasury, Interior, Transportation, and Energy all have components that perform some domestic security-related functions. -- Vertical integration has also been a strategic focus. DHS-led intelligence fusion centers, and Federal Bureau of Investigation (FBI) led Joint Terrorism Task Forces (JTTF) each include non-federal, that is state, local, or tribal personnel to help accomplish their missions, and surplus military-grade equipment has increasingly proliferated into local law enforcement. Each of these measures is controversial, with some municipalities attempting to limit by legislation their police forces’ participation in JTTFs, and many observers criticizing the increased “militarization” of law enforcement. Further, the rise of so-called “sanctuary cities” also pits some localities against federal immigration laws in ways that may have significance for counterterrorism efforts. -- This first episode in our Security Partnership Teleforum Series explored the limits of federal, state, local, and tribal cooperation. Can and should federal authorities commission local law enforcement to surveil potential threats, and compel compliance with immigration enforcement efforts? How blurred is the line now between “domestic surveillance” for “domestic security” purposes (to which the Fourth Amendment applies) and broader national security concerns that have a foreign intelligence nexus that might be governed by the Foreign Intelligence Surveillance Act? Are there limits on how technologies developed for intelligence gathering purposes may be used in law enforcement missions? What limits should there be on the military’s supplying equipment and training to law enforcement agencies? -- Featuring: Governor Tom Ridge, Chairman, Ridge Global, Formerly the First Secretary of the U.S. Department of Homeland Security, Former Governor of Pennsylvania and Moderator: Adam R. Pearlman, Special Advisor, International and National Security Law Practice Group.

The Federal Trade Commission has dual missions to protect consumers and competition. The agency has a 100+ years of history as an antitrust enforcer and general consumer protection agency. And over the last 20 years it has emerged as the lead U.S. agency addressing consumer privacy and data security. During the past administration, the agency faced challenges within and without. How well has it executed its dual missions? What external factors (such as actions by the CFPB and FCC) have affected its ability to further its missions? And how might the agency improve in the coming administration? To answer these questions we'll talk to Heritage Senior Fellow Alden Abbot and FTC Acting Chairman Maureen K. Ohlhausen. -- Featuring: Alden Abbott, Deputy Director of the Edwin Meese III Center for Legal and Judicial Studies and the John, Barbara, and Victoria Rumpel Senior Legal Fellow, The Heritage Foundation and Hon. Maureen K. Ohlhausen, Commissioner, Federal Trade Commission.

Farha v. United States, currently pending on a petition for writ of certiorari to the U.S. Supreme Court, is a case study raising basic notions of due process, fair notice, the rule of lenity, mens rea, and whether administrative and civil remedies would be more appropriate. What began as a highly publicized raid by some 200 FBI agents on a Florida health care company over an accounting dispute ended in the indictment, conviction, and prison sentences for the Wellcare executives for fraud. -- On appeal, where the case was captioned Clay v. United States, the U.S. Court of Appeals for the Eleventh Circuit upheld the convictions over the objections of the defendants that the jury instruction impermissibly allowed the jury to convict if the defendants were “deliberately indifferent” to the law’s requirement as opposed to finding a “knowing” violation as the statute requires. The Supreme Court in 2011, in Global-Tech Appliances, a civil case involving patent infringement, held that "knowledge" cannot include "deliberate indifference" to show sufficient mens rea to establish infringement. Accordingly, the cert petition, filed by Seth Waxman of WilmerHale, seeks to have the Court rule that the jury instructions should require a higher mens rea standard, all the more so in a criminal case. -- This case is particularly important for all regulated industries, where there are numerous laws and complex regulations governing conduct subject to administrative, civil, and criminal enforcement. -- Featuring: Paul Kamenar, Washington, D.C. Public Policy Attorney and Senior Fellow, Administrative Conference of the U.S. and Jeff Lamken, Partner, MoloLamken. Moderator: John G. Malcolm, Director and Ed Gilbertson and Sherry Lindberg Gilbertson Senior Legal Fellow, Edwin Meese III Center for Legal and Judicial Studies, The Heritage Foundation.

On February 21, the Supreme Court will hear argument in Hernandez v. Mesa. In July of 2010, a 15-year-old adolescent named Sergio Adrian Hernandez Guereca and his friends were playing along a concrete structure on the border of the U.S. and Mexico. When Jesus Mesa, Jr., a U.S. Border Patrol Agent arrived, he detained one of the youths on the border, and shot and killed Hernandez, who was hiding behind a pillar of the Paso Del Norte Bridge on the Mexican side of the border. Hernandez’s parents sued Agent Mesa under the Fourth and Fifth Amendment for the use of unlawful and disproportionate force. Agent Mesa argued that the Fourth and Fifth Amendments did not apply because Hernandez was not a U.S. citizen. The District Court found for Agent Mesa, while the U.S. Court of Appeals for the Fifth Circuit held that the Fifth Amendment Protections against deadly force applied but the Fourth Amendment did not, and that Agent Mesa should not receive qualified immunity. -- Professor Andrew Kent of Fordham University School of Law and Professor Stephen I. Vladeck of UT Austin Law School joined us to examine the case and its implications for extraterritorial application of the Bill of Rights and for qualified immunity. -- Featuring: Prof. Andrew Kent, Professor of Law, Fordham University School of Law and Prof. Stephen I. Vladeck, Professor of Law, The University of Texas at Austin School of Law.

President Trump took a step toward fulfilling his campaign promise to cut regulations last week when he signed an executive order calling for two regulations to be eliminated for every new one issued. The president has indicated that the order will yield “the largest ever cut by far in terms of regulations.” But some are worried that it is a Sophie’s choice for regulatory agencies, and the order will change how regulators do business in the U.S. -- Professor Susan Dudley, director of the George Washington University Regulatory Studies Center explained what the order does and does not do. Jitinder Kohli, former head of the UK Better Regulation Executive, described lessons learned from the UK’s “one-in-three-out” policy. This Teleforum was the first episode in the Executive Order Teleforum Series. -- Featuring: Professor Susan Dudley, Director, George Washington University Regulatory Studies Center and Jitinder Kohli, Director in Public Sector Practice, Deloitte Consulting.

Given the size and scope of the federal government, many agency regulations, guidance documents, and cases are left in various stages of development as the executive branch changes hands. The first episode of our Legal Options for the New Administration Teleforum Series focused on pending litigation in the executive branch. Is the administration free to dismiss or stop prosecuting cases which do not align with its policies? Can the administration stop defending actions in court? What are the constraints? What has been the past practice? These and other questions were discussed by our experts. -- Featuring: Steven G. Bradbury, Partner, Dechert LLP and William S. Consovoy, Partner, Consovoy McCarthy Park PLLC.

During the Obama administration, the Department of Education promulgated a host of rules aimed specifically at for-profit educational institutions, which enroll over a million students. For instance, the Obama Department of Education has required for-profit schools to show that graduates are spending less than 20% of their postgraduate discretionary incomes on student loan repayment as a condition of for-profit schools’ continued eligibility for federal financial aid dollars. Another rule threatens to make it substantially easier for graduates of for-profit schools to demand student loan forgiveness. Now that President Trump has taken office, will his administration change course on these regulations? What are the options if his administration wishes to do so, and how feasible are they for the sector? -- Lucas Townsend, a partner at Gibson Dunn with substantial experience litigating agency challenges, surveyed some of the most significant regulations. He discussed options for the Trump administration or Congress to withdraw or alter these actions. -- Featuring: Lucas Townsend, Partner, Gibson Dunn.