As the snow has fallen on Washington, DC’s First Street over the past few days, the Supreme Court has begun to issue opinions in the current term.
One of those cases has been in the news constantly, as it relates to a matter at issue in the recent presidential campaign that will likely get attention after the inauguration. The other two relate to federal court jurisdiction, but they are also consequential because their fact patterns are likely to be duplicated in future litigation.
While, with the advent of the new administration, things very well might change, the news today that the Court has upheld a law that could ban the social media platform TikTok this Sunday is significant not only to expressive younger Americans (perhaps your children and mine) but also as a matter of national security.
In a per curiam opinion in TikTok, Inc. v. Garland, the Court noted the following:
There is no doubt that, for more than 170 million Americans, TikTok offers a distinctive and expansive outlet for expression, means of engagement, and source of community. . . . But Congress has determined that divestiture is necessary to address its well-supported national security concerns regarding TikTok’s data collection practices and relationship with a foreign adversary.
And the Court has sided with Congress. Accordingly, TikTok either must divest or shut down the app this Sunday, January 19, as of which date, “the Protecting Americans from Foreign Adversary Controlled Applications Act [the “Act”] will make it unlawful for companies in the United States to provide services to distribute, maintain, or update the social media platform TikTok, unless U.S. operation of the platform is severed from Chinese control.”
The petitioners are two TikTok operating entities and a group of U.S. TikTok users who claimed that the Act, as applied to them, violates the First Amendment. The Court acknowledged that the case could be considered more of a regulation as to a foreign government adversary’s corporate ownership than as a matter of speech. Thus, the Court holds that “a law targeting a foreign adversary’s control over a communications platform is in many ways different in kind from the regulations of non-expressive activity that we have subjected to First Amendment scrutiny.” Those differences include “the Act’s focus on a foreign government [and] the congressionally determined adversary relationship between that foreign government and the United States. . . .” However, “[t]his Court has not articulated a clear framework for determining whether a regulation of non-expressive activity that disproportionately burdens those engaged in expressive activity triggers heightened review. We need not do so here. We assume without deciding that the challenged provisions fall within this category and are subject to First Amendment scrutiny.”
The Court goes on to set forth a primer on the conditions predicate for considering governmental action that arguably suppresses speech. “Content-based laws—those that target speech based on its communicative content—are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests.” Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015). Content-neutral laws, in contrast, “are subject to an intermediate level of scrutiny because in most cases they pose a less substantial risk of excising certain ideas or viewpoints from the public dialogue.” Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622, 642 (1994) 512 U.S., at 642 (citation omitted). “Under that standard, we will sustain a content-neutral law ‘if it advances important governmental interests unrelated to the suppression of free speech and does not burden substantially more speech than necessary to further those interests.” Turner Broadcasting System, Inc. v. FCC, 520 U. S. 180, 189 (1997).’”
”As applied to petitioners, the challenged provisions are facially content neutral and are justified by a content-neutral rationale.” Noting that the Act in question is “designed to prevent China—a designated foreign adversary—from leveraging its control over ByteDance Ltd. to capture the personal data of U. S. TikTok users,” which “qualifies as an important Government interest under intermediate scrutiny,” the Court held that this standard, including its narrow focus, justified the divestiture order at issue.
Justice Sotomayor and Justice Gorsuch concurred in the result. Justice Gorsuch’s caveat, expressing satisfaction that the Court did not consider evidence available to it but not to the petitioners, is noteworthy. That is a potential issue in many national security-related cases.
Labor law practitioners who read this blog will be particularly interested in the Court’s unanimous opinion in E.M.D. Sales, Inc. v. Carrera. The case concerns the application of the Fair Labor Standards Act (FLSA), guaranteeing a federal minimum wage for covered workers, 29 U. S. C. §206(a)(1), and requiring overtime pay for those working more than 40 hours per week, §207(a)(1). There are, however, many employees who are exempt from the FLSA’s overtime-pay requirement, e.g., salesmen who primarily work away from their employer’s place of business. §213(a)(1). The application of that exemption places the burden on the employer to show that it applies. Here, EMD, a Washington, DC-area food distributor, faced overtime claims by certain sales representatives who manage inventory and take orders at grocery stores. Several sales representatives sued EMD, alleging that the company violated the FLSA by failing to pay them overtime.
At trial, the U.S. District Court for the District of Maryland held that EMD failed to prove by “clear and convincing evidence” that its sales reps were “outside salesmen.” The U.S. Court of Appeals for the Fourth Circuit affirmed. EMD argued that the sales representatives were outside salesmen and, therefore, exempt from the FLSA’s overtime-pay requirement and that the District Court should have used the less stringent “preponderance of the evidence” standard.
The Supreme Court agreed, holding that the preponderance-of-the-evidence standard applies when an employer seeks to demonstrate that an employee is exempt from the minimum wage and overtime pay provisions of the FLSA. Noting that at the time of enactment of the FLSA in 1938, and continuing to the present, the preponderance standard is the default mode in American civil litigation, the Court held in favor of EMD.
There are three main circumstances in which a more stringent standard might apply: (1) where a statute requires it, (2) where the Constitution requires it, and (3) where coercive governmental action is present. None of those is present here. Moreover, in a related area to the case at bar, employment discrimination, the preponderance standard has consistently been applied. Additionally, the Court rejected the notion that the non-waivability of FLSA rights is material to what standard of proof applies.
Ultimately, the remedy applied by the Court is a limited one. In reversing the decision, the Court simply remands the case to the Court of Appeals to determine whether employees would fail to qualify as outside salesmen even under a preponderance standard.
In a case decided two days ago, Royal Canin U.S.A. Inc. v. Wullschleger, the Court dealt with a consumer claim that the manufacture of a brand of dog food (full disclosure: my dog loves the Golden Retriever variety) had engaged in deceptive marketing practices. The consumer’s original claim, filed in state court, asserted both federal and state law violations. Royal Canin removed the case to federal court pursuant to 28 U. S. C. §1441(a). The plaintiff, Anastasia Wullschleger, wanted the case to be resolved in state court, so she amended her complaint to remove any mention of federal law and petitioned the district court for a remand to state court, which the court denied. However, the Eighth Circuit reversed, and a unanimous Supreme Court, per Justice Kavanaugh, affirmed, holding that “[w]hen a plaintiff amends her complaint to delete the federal-law claims that enabled removal to federal court, leaving only state-law claims behind, the federal court loses supplemental jurisdiction over the state claims, and the case must be remanded to state court.”
Thus, the Court has begun to issue new opinions, at least one of which is going to resound loudly on the domestic political scene.