Supreme Court Protects Internet Firms
From Liability for Terrorist Content
The U.S. Supreme Court preserved the immunity of Google, Facebook and Twitter in a ruling last week that said the tech giants should not be liable for irresponsible speech that other persons post on their internet platforms.
The Supreme Court let stand lower court rulings against state attorneys general and others who accused the internet companies of aiding and abetting hate speech and postings that encourage terrorism.
The District of Columbia’s attorney general joined in one of the lawsuits.
Former D.C. Attorney General Karl Racine wrote in a brief about Facebook that, "They are bombarding users with hateful and violent content every day—because Facebook cares more about profit than it cares about protecting its consumers and being responsible about hate speech.”
The Ninth and Second Circuit courts based their rulings on Section 230 of the Communications Decency Act, which generally provides immunity to online computer services for content generated by their users.
The Supreme Court’s unanimous decision affirming the lower court rulings was written by Justice Clarence Thomas. It said, "To be sure, it might be that bad actors like ISIS are able to use platforms like defendants' for illegal — and sometimes terrible — ends. But the same could be said of cellphones, email or the internet generally. Yet, we generally do not think that internet or cell service providers incur culpability merely for providing their services to the public at large."
The Supreme Court did not intend its ruling as the final statement on internet liabilities under Section 230. Instead, it focused on the Anti-Terrorism Act claims, leaving any decisions to Congress to decide whether Section 230 should be modified.
An example used prominently by the plaintiffs was the Jan. 1, 2017 mass shooting at an Istanbul, Turkey, nightclub where 39 people were killed and 79 injured as they celebrated the New Year. Subsequent investigation showed the Islamic State perpetrators recruited terrorists for the attack through Internet postings.
The plaintiffs said that by failing to remove the Islamic State content, Twitter and other tech companies violated the Anti-Terrorism Act.
The Supreme Court disagreed, saying the tech companies set up algorithms to display content posted and read by terrorists and other users who did keyword searches but they did not knowingly provide substantial assistance to terrorist groups, which is required to prove a violation of the Anti-Terrorism Act.
Still unresolved is what effect the case will have on debate in Congress on Section 230 of the Communications Decency Act.
Congress approved the Communications Decency Act in 1996 to prevent liabilities that might impede growth of the internet while still protecting free speech.
Since then, Section 230 has been blamed for opening internet platforms to sex trafficking, terrorist recruitment, criminal plots and extremists who planned the Jan. 6, 2021 attack on the U.S. Capitol.
About a dozen bills have been introduced in Congress to revise Section 230. President Joe Biden has suggested it should be repealed.
For more information, contact The Legal Forum (www.legal-forum.net) at email: tramstack@gmail.com or phone: 202-479-7240.
NRA Sues Maryland’s Governor Over Laws
Restricting Rights to Carry Concealed Guns
The National Rifle Association sued Maryland's governor last week to block new gun control laws that place tight restrictions on where guns can be carried.
The laws ban guns from being carried anywhere close to schools, hospitals and other sensitive locations.
The NRA says the laws violate citizens' First, Second and Fourteenth Amendment rights.
The lawsuit appears to be aimed at holding off a series of similar gun control laws passed in several states following high-profile mass shootings.
So far this month, they have included eight people shot and killed at a Dallas suburban shopping mall; an Oklahoma man who killed his wife, three children, two family friends then himself and a Cleveland, Texas, resident who killed five people in an angry dispute with neighbors.
Seven nations are urging caution for their citizens who plan to travel to the United States. Australia, Canada, France, New Zealand, the United Kingdom, Uruguay and Venezuela issued advisories about U.S. gun violence.
The governors of Colorado and Washington state recently signed new gun laws the NRA is condemning. Similar laws are expected to pass the legislatures of Illinois and Minnesota this year.
In Maryland, the local affiliate of the NRA disputes the validity of state laws SB 1 and HB 824.
SB 1 bans concealed weapons in schools, hospitals and government buildings as well as "special purpose areas" such as stadiums and museums.
HB 824 further restricts eligibility for gun permits. It raises the age to qualify for a permit from 18 to 21 years old and bans permits for anyone convicted of drunk driving. It also prohibits guns for persons with a history of violent mental disorders or anyone who violates a protective order.
When Gov. Maryland Gov. Wes Moore (D) signed the bills this week, he said, "Gun violence is tearing apart the fabric of our communities, not just through mass shootings but through shootings that are happening in each of our communities far too often."
He pledged not to give up on addressing problems created by gun violence.
"In Maryland, we refuse to say these problems are too big or too tough," Moore said at the bill signing ceremony this week. "We will act, and that's exactly what today represents."
The NRA’s lawsuit relies heavily on last June’s landmark Supreme Court decision in New York State Rifle & Pistol Association, Inc. v. Bruen.
The ruling expanded the right of Americans to carry guns as a Second Amendment right. It significantly limited a state's authority to prevent citizens from carrying firearms publicly for their self-defense.
The New York law the Supreme Court overruled essentially required gun permit applicants to demonstrate life-threatening circumstances.
Referring to the Maryland laws, the NRA lawsuit said, "These new laws … destroy the right recognized in Bruen — the right of ordinary, law-abiding citizens to bear arms for self-defense outside the home — in the state of Maryland."
The restrictions on where citizens can carry guns are so broad they effectively rule out the possibility of having a gun outside someone’s home, the lawsuit says.
The lawsuit quotes the Bruen decision saying, “Nothing in the Second Amendment’s text draws a home/public distinction with respect to the right to keep and bear arms.”
The lawsuit was filed on behalf of Susannah Kipke, a licensed firearms dealer, and the Maryland State Rifle and Pistol Association Inc., the official state association of the NRA.
They ask a federal judge based in Baltimore for an injunction preventing the enforcement of SB 1 and HB 824.
The lawsuit is titled as Susannah Kipke et al. v. Wes Moore et al., number 1:23-cv-01293, in the U.S. District Court for the District of Maryland.
For more information, contact The Legal Forum (www.legal-forum.net) at email: tramstack@gmail.com or phone: 202-479-7240.
Trump’s Deposition Delayed in Lawsuit
By FBI Agents Who Claim Unjust Firing
Former President Donald Trump was scheduled to give a deposition this month in a lawsuit filed by former FBI agents but instead won a reprieve in federal court.
Two former FBI agents claim they were wrongfully fired for investigating Russian interference in the 2016 election and Trump’s handling of classified documents.
Text messages exchanged between former agents Peter Strzok and Lisa Page criticized Trump, which officially was the reason they were fired.
Strzok and Page say in their lawsuit the real reason they were fired was a political reprisal while they were properly performing their jobs. Strzok also was an FBI attorney.
Strzok wanted to question Trump during a deposition but the Justice Department intervened by arguing in U.S. District Court that FBI Director Christopher Wray must be deposed first. The normal order for depositions when the government is sued runs from officials with lowest seniority to highest seniority.
A deposition for Trump first would make it "impossible to determine if the Director's deposition might obviate the need to depose the former President," Justice Department attorneys wrote in a brief submitted to the court.
Judge Amy Berman Jackson largely agreed with the Justice Department but expressed frustration in her minute order that "the parties have done nothing more than wrangle over the order of the two depositions."
She added, "However, in order to get the parties -- who apparently still cannot agree on anything -- over this impasse, it is hereby ordered that the deposition of Christopher Wray proceed first …"
Strzok seeks reinstatement and back pay with his claim. Page says her privacy rights were violated when text messages were released publicly that led to allegations she was biased against Trump.
Page argues in the lawsuit that release of the text messages subjected her to "frequent attacks by the President of the United States, as well as his allies and supporters."
Strzok alleges that "the FBI fired [him] because of his protected political speech in violation of his rights under the First Amendment to the Constitution of the United States."
The White House last year declined to assert executive privilege to protect Trump from the lawsuit.
For more information, contact The Legal Forum (www.legal-forum.net) at email: tramstack@gmail.com or phone: 202-479-7240.
WMATA’s Status as Common Carrier
Under Fire in Wrongful Death Claim
Washington, D.C.'s transit agency is trying to win dismissal of a lawsuit by the family of a lawyer who died after falling off a subway platform while intoxicated in a case testing the limits of common carrier liability.
Okiemute C. Whiteru, a 35-year-old lawyer, fell off a Judiciary Square Metro station platform in October 2013 and was found dead days later behind a wall.
The transit agency calls him an “unknown trespasser” for landing in a trough behind a wall where he could not easily be seen by passengers or employees of the Washington Metropolitan Area Transit Authority (WMATA).
Common carriers owe a duty to protect passengers from hazards or to render aid when they are injured.
Whiteru’s family says WMATA breached the duty. The transit agency argues the duty of care does not extend to trespassers.
The bigger issue in the lawsuit is how far common carriers must go to prevent risks to customers who are negligent, such as by being drunk.
Common carriers refer to entities whose businesses transport people or goods from one place to another for a fee. They include transit agencies, airlines, cruise ships and railroads.
They are required by federal and local law to exercise reasonable care to avoid harm from risks created by their customers as well as from third parties. Third parties often mean criminals or negligent employees.
A judge for the U.S. District Court for the District of Columbia ruled in 2020 that Whiteru was a trespasser who was "contributorily negligent." District of Columbia law prevented Whiteru's family from being compensated for the injuries he suffered in his fall, the ruling said.
The D.C. Circuit Court of Appeals revived the lawsuit last year after finding the district court did not properly evaluate WMATA’s common carrier duties.
Whiteru’s family argued in a brief that regardless of the lawyer’s negligence, the transit agency should have come to his aid.
"As a common carrier, WMATA owes a duty to aid injured passengers on its premises when it knows, or should know, of their presence," the brief said. "Here, Mr. Whiteru remained a passenger even though he fell behind the wall of the Metro passenger platform: he was a paying customer, he remained on WMATA's property, he fell accidentally, and the location where he lay injured was both foreseeable and in a place the station manager had a duty to inspect."
WMATA argued it owed Whiteru a “lesser standard of care” when he sat on a 3-foot-high wall in a drunken state and fell into a trough where passengers are not allowed.
"D.C. case law is clear: Landowners, including common carriers, owe trespassers a lesser duty of care — merely a duty not to engage in intentional, willful, or wanton misconduct," WMATA said in a D.C. Court of Appeals filing.
It added, “Under D.C. law, when a passenger enters an area without a common carrier's consent or acquiescence, the passenger becomes a trespasser."
The appellate case is Cameroon Whiteru v. Washington Metropolitan Area Transit Authority, number 22-7154, in the U.S. Court of Appeals for the District of Columbia Circuit.
For more information, contact The Legal Forum (www.legal-forum.net) at email: tramstack@gmail.com or phone: 202-479-7240.
Walgreens Tries to Vacate $642 Million
Award in Drug Pricing Dispute
Retail pharmacy giant Walgreen Co. is blaming a Washington, D.C., law firm for contributing to what it calls a “miscarriage of justice” in a $642 million judgment levied against it recently by an arbitrator in a drug pricing dispute.
Attorneys for Walgreens filed a motion last week asking a federal court to vacate the award to Humana Health Plan.
Humana accused Walgreens of overcharging on drug prices in breach of prescription drug reimbursement contracts.
An arbitrator from the American Arbitration Association said he compared the usual and customary prices charged for drugs to the prices Walgreens charged Humana to arrive at the $642 million figure.
Walgreens responded in its filing by saying that “no ordinary reader of the contract at issue would find that Walgreens had done anything wrong, and when the evidence showed Humana was fully aware of Walgreens’ approach and did nothing until solicited by conflicted counsel. This miscarriage of justice should not be permitted to stand.”
Walgreens also said the law firm Crowell & Moring should have been disqualified for a conflict of interest in representing Humana. Years earlier, the firm advised Walgreens on the kind of drug pricing involved in the Humana dispute.
"The result was that the arbitrator awarded a massive windfall to Humana," Reed Smith attorneys said in a court filing.
Walgreens sued Crowell & Moring in 2021 in District of Columbia Superior Court seeking indemnification from any award to Humana and ordering the firm to relinquish any legal fees it earned in the case. Walgreens lost at the trial level but is appealing.
Crowell & Moring said in a statement that the Walgreens accusations were “meritless” and the firm was "confident that the arbitrator's thorough and well-reasoned award will be affirmed."
Humana said in a separate filing asking the court to affirm the $642 million award that Walgreens submitted "millions of falsely-inflated" claims for reimbursement on drugs.
The case is Walgreen Co v. Humana Health Plan Inc, U.S. District Court, District of Columbia, No. 1:22-cv-00307-ACR.
For more information, contact The Legal Forum (www.legal-forum.net) at email: tramstack@gmail.com or phone: 202-479-7240.
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