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First Amendment

It seems that even some members of the U.S. Supreme Court are Swifties.
Capping off a year in which Taylor Swift’s name has repeatedly been mentioned on Capitol Hill, at the Department of Justice and on NFL broadcasts, it came up Tuesday during Supreme Court arguments in a major case over social media and the First Amendment.

As part of a legal hypothetical aimed at probing the questions in the case, Justice Ketanji Brown Jackson asked an attorney from the U.S. solicitor general’s office a question about how court should “evaluate a government employee controlling access to private property.”

“What if we have, you know, a big concert, Taylor Swift has a big concert in a private … area, a park something, and the police recognize there are going to be large crowds, et cetera, and so they come and they help with the screening of the bags and they, you know, kick out people who are rowdy,” Jackson asked. “Because it’s private, we would say that’s not state action?”

The case before the justices (Lindke v. Freed) is about whether or not public officials, including presidents, can block users on social media platforms like Facebook. Put another way: When is a government employee’s use of social media a “state action,” which is tightly governed by the First Amendment? And when is it just the action of a private citizen, which is not?

In her question, Jackson was trying to use the Taylor concert to illustrate the difficulty of pinpointing that dividing line, and testing one theory advanced by solicitor general’s office. Police are obviously agents of the government, but would their actions during such a private Swift concert not be an action by the state?

In her answer, Assistant U.S. Solicitor General Masha Hansford said the officers’ actions should still be treated as “state action” even at the Swift concert, since they would still be “carrying out their official duties.” But Justice Jackson pushed the question further.

“But Taylor Swift could have hired [a private security guard],” Jackson said. “I mean, they’re not doing anything more than a private security guard could have done, right? So what makes it that they are [engaging in] state action?”

Though Swift herself has never been directly involved in a Supreme Court case, Tuesday’s arguments were not the first time her name has come up at SCOTUS.

During arguments in a different case back in 2021, the justices repeatedly cited Swift’s lawsuit against a Denver radio DJ named David Mueller, who the superstar had claimed groped her at photoshoot. In that case, Swift sought only sought $1 in so-called “nominal damages” against Mueller – a legal tactic used in cases in which litigants want to prove a point but aren’t seeking a big payday.

The 2021 case before the justices dealt with that very same issue, and they repeatedly raised Swift’s case as a comparison.

“I’m not really interested in your money,” Justice Elena Kagan at the time, speaking from Swift’s point of view. “I just want a dollar, and that dollar is going to represent something both to me and to the world of women who have experienced what I’ve experienced.”

“What Taylor Swift wanted was, you know, vindication of the moral right, the legal right, that sexual assault is reprehensible and wrong,” Justice Amy Coney Barrett added later during the same arguments.

Maybe Swift’s case had an impact: Two months later, the Supreme Court ruled that litigants could indeed sue over the same kind of nominal damages Taylor had won against Mueller.

You might not be seeing many headlines these days about the massive litigation underway in Houston over the deadly 2021 disaster at Travis Scott‘s Astroworld festival. That’s by design.

In a ruling Tuesday, an appeals court in Texas refused to lift a strict gag order that for more than a year has barred attorneys and others from discussing the sprawling litigation over the crowd crush at Astroworld, which left 10 dead and hundreds physically injured.

ABC News had challenged the “sweeping” restrictions, arguing they clearly violated the First Amendment’s protections on free speech and had created a “news desert,” in which almost no reliable information about an important case was being shared with the public.

But in its decision on Tuesday, a three-judge panel from the Court of Appeals For The First District of Texas rejected those arguments. Ruling on a battle over judicial transparency, the appeals court did not issue any written explanation for why it had denied ABC’s challenge.

Starting hours after Nov. 5, 2021 incident, lawyers claiming to represent more than 4,900 victims eventually filed more than 400 lawsuits against Scott, Live Nation and other organizers. The cases, later consolidated into a single “multidistrict litigation,” accuse the Astroworld organizers of being legally negligent in how they planned and conducted the event, including not providing enough security and having insufficient emergency protocols in place. Combined, the victims are seeking billions in damages.

But for a case dealing with a mass-casualty event at a popular music festival with billions at stake, relatively little is known about the Astroworld litigation.

Shortly after Judge Kristen Brauchle Hawkins was appointed to oversee the cases, she issued a “publicity order” that largely prohibited attorneys from speaking about the case, citing concerns that “extensive media coverage” threatened to deprive the parties of their right to a fair trial by tainting the jury pool.

The Feb. 15 ruling was both specific and broad – banning attorneys from discussing a wide range of particular topics, including “the strength and weaknesses of any party” and “rulings of the court,“ but also imposing catch-all restrictions on “any other information” that would “prejudice the trial.”

In challenging that order to the appeals court, ABC News argued that it had deprived the public of information about important judicial proceedings over a newsworthy event. The network warned that attorneys were refusing to share even basic information about the case with journalists, out of “fear of violating its broad and vague provisions.”

“The Gag Order, coupled with the lack of transparency from local and state officials, has created a news desert where many questions raised in the days after the Astroworld Festival remain unanswered,” the company wrote. “By [lifting] the Gag Order, this court would provide those connected to both the Astroworld Festival and the litigation the ‘breathing space’ needed to freely share their experiences, the press the ability to hold them to account, and the public the valuable information they need to better understand the events of November 5, 2021.”

But on Tuesday, the appeals court rejected those arguments. In a one-paragraph decision, the panel recounted ABC News’ argument and said simply: “We deny the petition.”

ABC News can appeal the ruling to the Texas Supreme Court. An attorney for the company did not return a request for comment on Wednesday.