Advice to Lawyers: Don't Cite a One-Justice Statement as the View of "the Supreme Court"

"Plaintiff failed to provide important context in her motion, namely that the Supreme Court denied certiorari in Malwarebytes, and that the only certiorari-stage explanatory writing came from Justice Thomas, who agreed with the decision to deny certiorari."

From the Motion for Leave to File a Motion for Reconsideration in J.B. v. G6 Hospitality, LLC:

First, the Supreme Court recently confirmed that the originally intended scope of Section 230 is "a far cry from what has prevailed in court," and implored lower courts to stop "reading extra immunity into statutes where it does not belong." Malwarebytes, Inc. v. Enigma Software Group USA, LLC, No. 19-1284, 2020 WL 6037214, at *2 (Oct. 13, 2020). The Malwarebytes guidance is particularly applicable here, because Justice Thomas specifically noted a case that is materially similar to this one as a problematic extension of Section 230 immunity. Id. at *4….

Very recent authority from the Supreme Court supports the conclusion that Section 230 immunity does not apply to Craigslist here. Recent lower court authority specifically regarding Craigslist likewise confirms that, were the Court to accept full briefing and consider Plaintiff's amended allegations, it should determine that immunity is inappropriate here.

In Malwarebytes, issued less than one month ago, Justice Thomas cautioned lower courts to stop relying on Section 230 to grant website companies broad immunity from liability for unlawful conduct occurring on their platforms. Justice Thomas explained that Section 230 was enacted "against specific background legal principles," including laws distinguishing between "publishers or speakers (like newspapers) and distributors (like newsstands and libraries)." 2020 WL 6037214, at *1. Specifically, Section 230 was intended to clarify "that if a company unknowingly leaves up illegal third-party content, it is protected from publisher liability by §230(c)(1); and if it takes down certain third-party content in good faith, it is protected by §230(c)(2)(A)." Id. at *2….

The response by the District Court (Judge Haywood S. Gilliam, Jr.):

Plaintiff seemingly argues that reconsideration is warranted on the second basis because subsequent Supreme Court authority "supports the conclusion that Section 230 immunity does not apply to Craigslist." Mot. at 4. The Court rejects this argument, as the authority cited does not qualify as a change in or clarification of controlling law. Plaintiff contends that "the Supreme Court recently confirmed that the originally intended scope of Section 230 is 'a far cry from what has prevailed in court,' and implored lower courts to stop 'reading extra immunity into statutes where it does not belong.' " Mot. at 1 (citing Malwarebytes, Inc. v. Enigma Software Group USA, LLC, No. 19-1284, 2020 WL 6037214, at *2 (Oct. 13, 2020)). Plaintiff effectively acknowledges that her argument falls short under Local Rule 7-9(b)(2). See Mot. at 6 ("To the extent this Court finds Justice Thomas's warning instructive, then, it would be difficult to argue that it does not apply to this case.")

More importantly, Plaintiff failed to provide important context in her motion, namely that the Supreme Court denied certiorari in Malwarebytes, and that the only certiorari-stage explanatory writing came from Justice Thomas, who agreed with the decision to deny certiorari. See 2020 WL 6037214, at *1. Justice Thomas wrote separately to "explain why, in an appropriate case, [the Supreme Court] should consider whether the text of [47 U.S.C. § 230] aligns with the current state of immunity enjoyed by Internet platforms." Id. Justice Thomas expressly indicated that the Court "need not decide [] the correct interpretation of" the Act, and simply stated his opinion that it should do so in the appropriate case. Id. at *5. This is far from showing a change in or clarification of controlling law meriting reconsideration.

It's perfectly fine to cite a one-Justice opinion; you just need to acknowledge that, and not say that the decision involves "the Supreme Court recently confirm[ing]" what that one-Justice opinion states. (Nor do the references to Justice Thomas in the motion make the one-Justice nature of the opinion clear; "Justice X cautioned," following a statement about what "the Supreme Court" did, is generally understood to suggest that Justice X wrote the opinion of the Court.)

Comments

[captcrisis]

It’s worse than that.

When I was in law school (1989 – 1992) we knew that the Supreme Court had repeatedly warned that a grant or denial of cert is not to be cited for precedential value. That’s still true isn’t it?

[Dilan Esper]

Yeah, although, again, context is everything. For instance, a four justice concurrence to a denial of cert saying that they would grant and reverse but for certain procedural defects might be a very persuasive opinion to cite to a lower court. It just depends.

[Robert Efroymson]

Procedural Q:
Is there any difference between a Motion for Leave to File a Motion for Reconsideration, and a plain Motion for Reconsideration?

Maybe it’s like Notice of Motion, and Motion …

[captcrisis]

Some judges require you to get permission to make a motion. And so letters (or even briefs) go back and forth, for and against. It’s a motion to make a motion.

[Robert Efroymson]

Interesting. I read a bit of one such motion to make a motion, and it seemed to include much of what would be in the actual motion, since all reasons for granting leave are also reasons to grant the motion itself..

[captcrisis]

If it’s a motion by defendant to dismiss/summary judgment, the judge might want to see if there’s a realistic chance of success and the case being disposed of, as opposed to a “strategic” motion designed just to flush out the opponent’s proof. In the latter case she doesn’t want to waste her time reading papers and writing a decision.

[The Turtle Dove]

On the other hand, in a criminal case, one sentence usually suffices.

Seriously, though there is a nuance to note between the cert docket and the direct review docket on the precedential value of denied appeals, and I’m not sure how that plays out in an original jurisdiction denial. Other than “abstained courteously.”

Mr. D.

[MatthewSlyfield]

“On the other hand, in a criminal case, one sentence usually suffices.”

Usually, but not always.

List of Longest Prison Sentences.

Terry Nichols:

161 life sentences plus 9,300 years without parole

Convicted of 161 counts of first-degree murder, first-degree arson, and conspiracy by the state court of Oklahoma for his part in the Oklahoma City bombing of April 19, 1995: also sentenced in federal court for terrorism and eight counts of involuntary manslaughter. Record for most consecutive life sentences ever given to a single individual. Due to such a large number of life sentences, adding no parole possibility, it can be also declared as the longest officially confirmed sentence ever handed in the world.

[SimonP]

Strange, I seem to recall that Roberts’ one-justice opinion for NFIB v. Sebelius was supposed to represent the “view of the Court” when it came to permissible exercises of the Commerce Clause… I wonder where I read that… hmm….

[mse326]

Are you trying to be funny or do you not get the difference between a single justice explaining why he denied cert with no other opinions and a merits opinion written by one justice that when paired with a merits opinion by 4 justices provides the rule of the Court under Marks?

[KenveeB]

My personal favorite that I see fairly often is the attorney quoting a court opinion for something favorable — “The Court of Criminal Appeals recently concluded, ‘The defendant should always win.’ (Case citation).” But when you go to the case cited, the full quote is something like, “Appellant argues the defendant should always win. We disagree.”