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Petitions of the week: Three Second Amendment petitions and a Wiretap Act claim against Facebook

This week we highlight cert petitions that ask the Supreme Court to consider, among other things, whether Facebook plug-ins violate the Wiretap Act and whether the Second Amendment protects an individual’s right to possess firearms outside the home or after a conviction for a nonviolent offense.

Passed in 1968, the Wiretap Act makes it unlawful for someone to “intentionally intercept[] … any wire, oral, or electronic communication,” unless that person “is a party to the communication.” Facebook users brought a class action alleging that the tech company violated the Wiretap Act between 2010 and 2011. Specifically, the users claim that Facebook plug-ins on different websites allowed Facebook to gather URL data even when they were logged out of Facebook, which the users contend was an unlawful “interception.” The district court dismissed the case on the ground that Facebook was a “party to the communication.” Acknowledging a circuit split, the U.S. Court of Appeals for the 9th Circuit ruled that the case could proceed. In Facebook v. Davis, the company asks the justices to review and reverse the 9th Circuit’s decision.

District of Columbia v. Heller held that the Second Amendment protects an individual’s right to possess firearms at home. The decision further indicated that longstanding firearms bans for felons were “presumptively lawful.” Under 18 U.S.C. § 922(g)(1), individuals convicted of crimes punishable by over one year’s imprisonment are barred from possessing firearms. Holloway v. Rosen and Folajtar v. Barr ask whether applications of the ban to nonviolent offenders violate the Second Amendment. Raymond Holloway cannot possess firearms because of a misdemeanor conviction for driving under the influence. Lisa Folajtar is barred because of a felony conviction for willfully making a materially false statement on her tax returns.

In Holloway’s case, the district court ruled that the ban was unconstitutional as applied to Holloway, who argued that he was not the type of “unvirtuous citizen” who has historically been disarmed because, among other things, his offense was a nonviolent misdemeanor for which his sentence was less than one year. The U.S. Court of Appeals for the 3rd Circuit disagreed, determining that Holloway’s DUI was “serious” enough to consider him an “unvirtuous citizen.” In Folajtar’s case, both the district court and the 3rd Circuit rejected her argument that her nonviolent crime was not “serious” enough for the ban. Both petitions ask the Supreme Court to reverse the decisions below and to clarify the standards for when “presumptively lawful” felon-possess bans rise to a Second Amendment violation.

Heller also left unresolved the extent of Second Amendment protections outside the home. In New York State Rifle & Pistol Association Inc. v. Corlett, Robert Nash and Brandon Koch applied for New York licenses to carry firearms outside the home. The licensing officer denied their requests after determining that, under New York law, they had “failed to show ‘proper cause’ to carry a firearm in public for the purpose of self-defense, because [they] did not demonstrate a special need for self-defense that distinguished [them] from the general public.” Nash, Koch and the New York State Rifle & Pistol Association ask the Supreme Court to take their case because the lower courts are split over the strength of Second Amendment protections outside the home.

These and other petitions of the week are below:

Facebook Inc. v. Davis
Issue: Whether an internet content provider violates the Wiretap Act when a computer user’s web browser instructs the provider to display content on the webpage the user visits.

Bognet v. Boockvar
Issues: (1) Whether the petitioners, four individual voters and one congressional candidate, have standing to raise their elections clause, electors clause and equal protection clause claims; (2) whether the Pennsylvania Supreme Court usurped the Pennsylvania General Assembly’s paramount authority from the Constitution to “direct [the] Manner” for appointing electors for president and vice president and to prescribe “[t]he Times, Places and Manner” for congressional elections; (3) whether the Pennsylvania Supreme Court’s extension violates the petitioners’ right to have their votes counted without dilution and their right not to have their votes treated in an arbitrary and disparate manner under the equal protection clause; and (4) whether Purcell v. Gonzalez counsels against enjoining unconstitutional usurpations of authority to regulate federal elections by state courts and executive branch officials.

Confederated Tribes and Bands of the Yakama Nation v. Yakima County, Washington
Issue: Whether the United States can change the scope of its re-assumption of Pub. L. 83-280 jurisdiction over crimes involving Indians in Indian Country years after the re-assumption became effective under 25 U.S.C. § 1323 without the Yakama Nation’s prior consent required by 25 U.S.C. § 1326.

Serrano v. U.S. Customs and Border Protection
Issue: Whether, when the government seizes a vehicle for civil forfeiture, due process requires a prompt post-seizure hearing to test the legality of the seizure and continued detention of the vehicle pending the final forfeiture trial.

Holloway v. Rosen
Issue: Whether a lifetime firearms prohibition based on a nonviolent misdemeanor conviction violates the Second Amendment.

Servotronics Inc. v. Rolls-Royce PLC
Issue: Whether the discretion granted to district courts in 28 U.S.C. § 1782(a) to render assistance in gathering evidence for use in “a foreign or international tribunal” encompasses private commercial arbitral tribunals, as the U.S. Courts of Appeals for the 4th and 6th Circuits have held, or excludes such tribunals without expressing an exclusionary intent, as the U.S. Courts of Appeals for the 2nd, 5th and, in the case below, the 7th Circuit, have held.

Houston Community College System v. Wilson
Issue: Whether the First Amendment restricts the authority of an elected body to issue a censure resolution in response to a member’s speech.

RollinsNelson LTC Corp. v. United States, ex rel. Winters
Issue: Whether the False Claims Act requires pleading and proof of an objectively false statement.

Folajtar v. Barr
Issue: Whether 18 U.S.C. § 922(g)(1), which permanently prohibits nearly all felons—even those convicted of nonviolent crimes—from possessing firearms for self-defense, violates the Second Amendment, as applied to an individual convicted of willfully making a materially false statement on her tax returns.

New York State Rifle & Pistol Association Inc. v. Corlett
Issue: Whether the Second Amendment allows the government to prohibit ordinary law-abiding citizens from carrying handguns outside the home for self-defense.

Recommended Citation: Andrew Hamm, Petitions of the week: Three Second Amendment petitions and a Wiretap Act claim against Facebook, SCOTUSblog (Jan. 15, 2021, 1:41 PM),