Texas v. TechLords III

The brief as filed, and the story of its filing

This is about is my amicus brief in Texas v. Techlords (NetChoice v. Paxton), now filed. It was the subject of two previous substacks of mine— the summary section, and an earlier draft. You might find it interesting to see how it changed as we wrote it. Here, I will add the story of its writing, which will be useful for anybody thinking of writing their own amicus brief for a Supreme Court case.

An amicus curiae is a “friend of the court”. In any legal case, there is an attacking party (the prosecutor or plaintiff or relator) and a defending party (the defendant). Other parties can ask permission to enter, and must be admitted if they have a good reason, such as that if a defendant being sued loses, they’ll lose a lot of money too. Parties who are *not* directly affected, but would like to help the court make a good decision can ask to enter, and the court will usually let them. They are called amici (the Latin plural of amicus (cf. “amigo”, “amicable”).

I’ve written a number of amicus briefs before,¹ have signed on as a non-writing amicus on at least one other,² and been a “sophisticated client” in a couple of cases.³ Those were mostly in federal appeals courts, with one in federal district court, one in New York state courts, and two at the Indiana Supreme Court. In those courts, an amicus can file a brief without having a lawyer (pro se, for himself). He must carefully follow all the requirements of the particular court’s rules about formatting, permissions, and deadlines, though which are things a paralegal would help a lawyer with, and he won’t know the local “customary rules” about things like what the true deadlines and formatting rules are, which may be laxer the written rules. And the amicus briefs, whether written by a lawyer or not, are usually ignored by the court. The court has no ethical requirement to read them or discuss them (unlike the parties’ briefs), and, to be honest, most amicus briefs aren’t worth reading. Most of them just repeat the same arguments as the parties. In my briefs, I always try to add something new, usually some economics.

The U.S. Supreme Court is different. Not in most briefs being useless- indeed, that is an even bigger problem for the Supreme Court— but in the difficulty of complying with the rules. Since everybody and his cousin would like to be an amicus in a Supreme Court case, and most of them are “midwits”, people with strong opinions and only average intelligence who have zero feel for law but think they are geniuses, the Court makes it easy to throw out briefs on technicalities. They still don’t have to read them, but if they didn’t create some obstacles, the garbage cans would be overflowing.

I’d been urged to write an amicus brief at the appellate level in the 5th Circuit (Texas), and in the 11th Circuit (Florida) where a very similar case was proceeding. I wanted to, since the issue in this case is whether the large social media platforms such as Twitter and You-Tube can censor people who oppose affirmative action, covid lockdowns, or Democratic hoaxes about Trump and Russia— or indeed, exclude all Republicans and all anti-Biden Democrats. This is crucial for democracy. But I hadn’t gotten to it. This time, I would, But I was slow. Lesson one: finish a circulatable draft brief a month before the deadline. That way, you can line up a lawyer, circulate your draft for comment, and recruit other people to help write and to be fellow amici. I had intended to ask a couple of prominent economists to join me, for example, but to do that I needed something to show them what they were signing on to. I did ask three, but one never joins amicus briefs, another was too busy, and the third was submitting his own amicus brief in this case.⁴

I mentioned “line up a lawyer”. The U.S. Supreme Court is unusual in requiring the amicus to have a lawyer, and, furthermore, a lawyer who is a member of the bar of the United State Supreme Court. There are thousands of these, but most lawyers are not members. Also, the lawyer can’t have a conflict of interest— his law firm can’t be representing someone else in the suit. NetChoice is a consortium of virtually all the big Internet companies, so that rules out most BigLaw lawyers.⁵ Also, I needed a good draft, to show that my amicus would be serious despite my eccentricities— for example, I had numerical examples and two graphs I wanted to include, and not all that many cases, since I knew the other briefs would cover those.

I am the Chairman of an Alumni Free Speech Alliance committee in charge of an amicus brief in another Supreme Court case, Speech First v. Sands (students v. Virginia Tech), so I knew one lawyer who is a member of the Bar, but his law firm, Dhillonlaw, was already representing another amicus in NetChoice.⁶ Indiana University Professor Barbara Cherry was already advising someone else on NetChoice. State Senator Eric Koch was too busy with his legistlative duties. Texas lawyer Jonathan Mitchell, with whom I’d talked about representing me against Indiana University in 2021, was already counsel for another amicus. Northwestern Professor John McGinnis was not on the Bar, though he’d worked in the Solicitor General’s office on a Supreme Court back in the 90’s. Penn Professor Herbert Hovenkampf said that he was under a mountain of work since the spring semester had just started. Karen Wyle, a Bloomington freelance appellate lawyer who also writes novels, turned me down. A childhood friend who is with a British firm’s Budapest branch gave me a nice intro email to someone he knew with lots of Supreme Court experience, but nothing came of it. Others didn’t reply to my email, and time was getting short.

My next-door-neighbor happens to be on the U.S. Supreme Court Bar, so I asked him, as we ran into each other walking our dogs. Sophie and Otis are great friends, even though Otis is about five times the size of Sophie. Although my neighbor i a staunch Democrat, he suggested James Bopp of the Bopp Law Firm in Terre Haute. I’d emailed Bopp earlier, with no response, but I emailed him again, and he was interested. Lesson two: email, text message, and voicemail are undependable. Jim Bopp was the lawyer I’d arranged with to be my counsel if I sued Indiana University back in 2021, and he was perfect for this. He is on the board of directors of National Right to Life; he lives in the same state; he was the lawyer handling the Supreme Court’s famous old Citizens United case on campaign finance. So he and a young associate, Eamon Earls, agreed to represent me.

Jim’s first question was “Have you secured a printer and when does the brief need to get there?” In discussions of the Ukraine War, the old maxim applies: “Amateurs talk strategy; professionals talk logistics.” In Supreme Court cases the equivalent is “Amateurs talk vote line-up; professionals talk printing.”⁷

Another lawyer I asked about my amicus had told me I’d have a hard time getting a Supreme Court Bar lawyer who wasn;’t conflicted out by NetChoice’s vast membership, but worse, he said, was the printer problem. All the Washington DC firms that specialize in printing Supreme Court briefs would be booked up. He’d reserved his spot with the printer months earlier. Depressing news, like that my tank offensive would fail because I’d forgotten to arrange for gasoline.

I googled some, though, and pored over the Court Rules, and discovered that it could be done— if I did it myself. Lawyers use specialized Supreme Court printers for good reason. Those printers know all the rules, and they also format the briefs for you, getting the font, the margins, and the style right. I could get the formatting right myself, though, by looking at the rules and past Supreme Court briefs by top attorneys. And, with some effort, I could use Kinko’s to get the printing done. I phone them up, and found that though they didn’t have the right kind of paper (60 lb. *and* matte, not shiny, I think), I could bring in my own, and they were able to cut the paper to the correct, only-the-Supreme-Court-uses-it, size. I would take them the draft to do a dry run single copy on Saturday, and then they could do the actual copying on Monday, ready for mailing off by the Tuesday deadline.⁸

Something I would have had to do was phone the Supreme Court Clerk’s Office about the details of the filing deadline. Amazingly enough, given all the other detail about inches of paper and color of cover and what to do with staples, the Court doesn’t post the exact time when briefs have to be filed. Giving the day is good enough for the electronic submission online— presumably 11:59pm on that day is good enough, though one appeals court, the 3rd Circuit, I think, has changed it to 6 p.m., I think, in a misguided effort to let lawyers go to bed earlier. I’ve filed late in the evening before with briefs, one time filing at 11:55 pm (I’d meant to make it a comforable 11:30, but something came up). I wasn’t going to be able to hand-deliver my brief in Washington, though, as I’d done with my Barnes brief for the Indiana Supreme Court, stuffing into a box in the statehouse rotunda after a wild drive up with my wife late at night.

What is really inexcusable, though, is the lack of specification of the deadline for mailing the 40 paper copies the Court requires. Is it the celebrated “Mailbox Rule” of contract law, where it is binding if you put it in the mailbox before the deadline minute? (and can prove it by the postmark— an important caveat). Did I have to remember the corollary of the true Mailbox Rule, that it is really when you send it beyond your control to recall, so in the case of Fedex delivery, the document had to *arrive* by the deadline minute? Or must the paper briefs *arrive* by U.S. mail by 5 p.m. on the deadline day? Or, as one of those customary court rules, did the paper copy arrival time not really matter so long as the electronic copy arrived by midnight?

Well, this is getting much too long, and I am scheduled to walk the dog in half an hour. So I’ll stop here, go back and italicize all the Latin and fill in the case links, and continue in Tech v. TechLords IV. You’ll have to be in suspense as to how the printing worked out.

1. I wrote:

• "Amicus Curiae Brief of Eric Rasmusen in Support of Appellants, Members of the Licensing Board v. Planned Parenthood," Indiana Supreme Court.

• In re Flynn" D.C. Circuit, "Brief Amicus Curiae of Professor Eric Rasmusen in Support of Petitioner."

• Mersino v. Sebelius 6th Circuit, No. 13-1944 (factors in granting a preliminary injunction in an Obamacare mandate case, 2013)

• “The Meaning of 'Value' for Gift and Estate Tax Donee Limitations in Tax Code 26 U.S.C. 6324(B): An Amicus Brief for Marshall v. Commissioner" (5th circuit, 2013).

• Barnes v. Indiana, "Brief of John Wesley Hall, K. Babe Howell, Eric Rasmusen, Steven Russell, and Ronald S. Sullivan as Amici Curiae in Support of Appellant's Petition for Rehearing," Indiana Supreme Court, Case No. 82S05-1007-CR-343, (legality of resistance to illegal police entry, 2011).

2. I just signed on:

• "Brief for Law and Economics Scholars as Amici Curiae in Support of Reversal, Emilee Carpenter, LLC D/B/A Emilee Carpenter and Emilee Carpenter v. Letitia James, in Her Official Capacity as Attorney General of New York et al.," Second Circuit, case 22-75. I merely gave edits for this, rather than being principal author.

• "Brief for Law and Economics Scholars as Amici Curiae in Support of Petitioners, 303 Creative v. Elenis," cert petition, U.S. Supreme Court. I merely gave edits for this, rather than being principal author.

3. I was a party in:

• New York State ex rel. Eric Rasmusen v. Citigroup, 75 N.Y.S.3d 903 (2018).

• Rasmusen v. White, 970 F. Supp. 2d 807 (N.D. Ill. 2013).

4. My involvement in the AFSA brief in Speech First v. Sands (students v. Virginia Tech) showed me an entirely different set of reasons to start early. We started with enough amici to pay the legal fees, but we wanted to add more. That took time, and since the amici were of vastly different levels of wealth, fee distribution was a headache— indeed, just the mailing of checks was. Also, with more amici, more people need to approve a document. With counsel drafting the brief, it is harder to get the substance to be what you want, and the timeline is less clear, and whether it is reasonable to make the counsel pull all-nighters. The idea of writing an AFSA brief came up too late to allow as much time as would be desirable, however, For my NetChoice brief I had no such excuse.

5. Conflict of interest is a complicated subject, so I might be wrong here. I didn’t look into it closely and don’t know that area of law, though this Mayer-Brown article looks useful.

6. Speech First v. Sands (students v. Virginia Tech) was about whether if a student were summoned before a university committee and scolded for speech protected the the First Amendment, but was told the meeting was voluntary, that infringed the 1st Amendment. Amici were The Alumni Free Speech Alliance, The University of California Free Speech Alliance, The Cornell Free Speech Alliance, Davidsonians for Freedom of Thought and Discourse, The Generals Redoubt, Harvard Alumni for Free Speech, The Jefferson Council for the University of Virginia, The MIT Free Speech Alliance, Princetonians for Free Speech, and The UNC Free Speech Alliance. They were all very reasonable, but it was still hard to coordinate.

7. The quote “Amateurs talk strategy. Professionals talk logistics,” is attributed to General Omar Bradley. He may have been thinking of Eisenhower’s strategy after the Normandy Invasion in 1944, when Bradley and his subordinate, General Patton, were not allocated enough gasoline to continue their Cobra breakout much past Paris, and so had to halt even though the German resistance had crumbled. By the time enough port facilities had opened up for gasoline transport, the Germans had gotten themselves together and further American advances were very slow.

8. I found Aaron Greenspan’s “Petitioning Rube Goldberg's Supreme Court: An unlikely tale of weaponized fonts and killer margins,” (February 17, 2013) very useful. It is similar in style to the Substack essay you are reading now. The Supreme Court’s court rules are inspirational.