supreme court

The Apple-Epic Feud Goes to the Supreme Court Over a Question of Judicial Power

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This guest post by BC Law Professor and Associate Dean of Academic Affairs Daniel Lyons first appeared in the AEIdeas Blog.

In what has become an annual tradition, the last day of the Supreme Court term was marked by blockbuster opinions on several hot-button topics. But hidden among the resolution of this year’s cases was an interesting note about next year’s docket. The Court agreed to review a contempt order in Apple’s years-long antitrust fight with Epic Games. At the center of the fight is a deceptively technical question with a long history: How literally should courts read their own orders when policing fast-moving industries?

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AI Speech Is Protected, But Not Immune From Liability

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This guest post by BC Law Professor and Associate Dean of Academic Affairs Daniel Lyons first appeared in the AEIdeas Blog.

Last week, I explained why many generative AI outputs constitute speech that warrants First Amendment protection. This post explores the ramifications of that conclusion. Importantly, this protection does not mean chatbots are immune from liability. Courts, litigants, and regulators still have meaningful tools to address the consequences of generative AI activity. The key question is not whether AI speech can be regulated, but what the regulation seeks to do and what effect enforcement would have on speech interests.

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Should the First Amendment Protect Generative AI Outputs?

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This guest post by BC Law Professor and Associate Dean of Academic Affairs Daniel Lyons first appeared in the AEIdeas Blog.

The most important free speech question of the decade may not be about social media. It may be about chatbots. As generative AI reshapes how people communicate, courts and legislators must confront whether and how the First Amendment protects AI outputs. Last year, the first court to face this question punted, explaining at the motion to dismiss stage that it was “not prepared” yet to hold that a large language model’s output is speech. That case settled without a definitive answer. But the question won’t stay dormant, and First Amendment principles compel a clear conclusion: many chatbot outputs are protected speech, which should shape how courts handle AI-related litigation.

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Supreme Court Considers FCC’s Jury Trial Problem

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This guest post by BC Law Professor and Associate Dean of Academic Affairs Daniel Lyons first appeared in the AEIdeas Blog.

The Federal Communications Commission (FCC) has loomed large on the Supreme Court’s docket recently. Last term, the Justices addressed E-Rate fraud prevention efforts, the agency’s authority to bind courts, and the constitutionality of its Universal Service Program. Now the Commission is before the High Court. This new case, FCC v. AT&T, asks whether the FCC’s power to levy punitive fines violates the Seventh Amendment right to a trial by jury—a question whose resolution could reshape not just telecommunications regulation but the balance of power among agencies, courts, and juries.

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Supreme Court Questions Broadband Provider Liability for User Misconduct

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This guest post by BC Law Professor and Associate Dean of Academic Affairs Daniel Lyons first appeared in the AEIdeas Blog.

Intermediary liability—when a company should be liable for users’ misuse of its product by users—has been a long-standing issue in tech policy. Two years ago, the Supreme Court dismissed a case alleging Twitter aided and abetted terrorism by allowing ISIS to recruit on its platform. This week, the Court weighed in again, hearing argument in a case involving a billion-dollar judgment against broadband provider Cox Communications for failing to terminate accounts suspected of copyright infringement. The case raises significant questions about copyright enforceability, broadband providers’ role as gateways to the internet, and digital equity concerns. The justices seemed doubtful that notification of user misuse was sufficient to trigger liability, although they struggled to find an alternative that balanced the equities of the case.

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The Ambiguity of Probable Cause: My Path to Law School

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This guest post is by Dave Sainte-Luce, a brand new 1L student at BC Law.

My fascination with law enforcement stretches as far back as my childhood. I was your normal cop-loving kid, who always perked up and watched in awe as those Ford Crown Victorias roared by with their sirens blaring and lights flashing. With each visit to the store, I could never leave without convincing my dad to buy me a new toy police car. At that age, I only understood cops as being brave and strong, running headfirst toward danger to fight crime and maintain law and order. Accordingly, I thought all criminals deserved to be punished, and the cops did the dirty work of putting the bad guys away to keep our community safe. With such a simple yet honorable equation, how could I not love the police?

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Surprise! USF Decision Signals Admin Law Revolution, But Not the One We Expected

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This guest post by BC Law Professor and Associate Dean of Academic Affairs Daniel Lyons first appeared in the AEIdeas Blog.

Late last month, the Supreme Court decided FCC v. Consumers Research. Although an undercard among the Court’s last-day decisions, the case was closely watched in administrative law circles as a potential vehicle for revitalizing the moribund Nondelegation Doctrine. But as predicted after oral argument, the Court found this was not the right case to do so. The big surprise was Justice Kavanaugh’s concurrence, which likely killed future efforts to reform nondelegation, but also signaled big news ahead for the law governing independent agencies.

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So, Are We Gonna Ban TikTok, Or…?

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This guest post by BC Law Professor and Associate Dean of Academic Affairs Daniel Lyons first appeared in the AEIdeas Blog.

It has been 373 days since Congress enacted the TikTok divest-or-ban law, 105 days since the Supreme Court unanimously upheld the law as constitutional, and over three months since the ban was scheduled to take effect. Yet except for a brief Inauguration Day interruption, the Chinese-controlled app has been, and remains, readily available in the United States, collecting data on 170 million Americans—data that could potentially be exploited by foreign adversaries.

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The Supreme Court Seems Unlikely to Revive Nondelegation Doctrine in FCC Case

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This guest post by BC Law Professor and Associate Dean of Academic Affairs Daniel Lyons first appeared in the AEIdeas Blog.

Earlier this month, I previewed the arguments in Federal Communications Commission v Consumers’ Research. The case asks the Supreme Court whether the FCC’s Universal Service Fund (USF) violates the nondelegation doctrine, which prohibits Congress from delegating the legislative power to executive branch agencies. As my previous post explains, nondelegation is a largely toothless doctrine, mostly dormant since 1935. But in recent years, five of the nine Supreme Court justices have expressed an interest in revitalizing the doctrine, given the right case in which to do so.

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Will FCC v. Consumers’ Research Revive the Nondelegation Doctrine?

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This guest post by BC Law Professor and Associate Dean of Academic Affairs Daniel Lyons first appeared in the AEIdeas Blog.

The idea behind the nondelegation doctrine is sound: Congress should not delegate legislative power to executive branch agencies. But its implementation leaves much to be desired. Nearly every nondelegation case acknowledges there’s a theoretical boundary but then finds that Congress hasn’t crossed it here. Only twice has the Supreme Court found a law violated the nondelegation doctrine, in 1935, both involving a statute that literally allowed President Roosevelt to cartelize the entire economy and make rules at whim. The modern rule allows Congress to give agencies significant authority as long as it includes an “intelligible principle” to guide exercise of that authority. Perhaps more than any other doctrine, this toothless standard has permitted the modern atrophy of our legislative branch, concentrated power in unelected bureaucrats, and enabled the imperial presidencies of the 21st century.

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