Attorney conflict rules landed law professor Eric Schnapper a pair of blockbuster US Supreme Court social media cases that could limit the scope of tech company protections.
Robert Tolchin, who represents the families of terror victims suing the tech giants, says many high court specialists were conflicted out of the cases set for argument Feb. 21 and 22 involving Google, Twitter, and Facebook.
That’s why he reached out to Schnapper, a go-to employment discrimination lawyer who spent 25 years at the NAACP Legal Defense and Education Fund, Inc. and now teaches at the University of Washington. Schnapper has argued 22 times before the justices over a half century, which made him a good bet despite having little experience with tech clients.
“The Supreme Court is a rarefied world,” said Tolchin, who has represented terror victims for more than two decades.
Schnapper, 80, will appear before the justices first in
Gonzalez v. Google
, in which the terror victim’s family claims YouTube provided support to extremists who carried out the attack by promoting Islamic State videos to people who had viewed similar content. The next day, he’ll argue that Facebook, Twitter, and Google aided a separate attack by allowing the terror group to use their sites as recruiting tools.
He will face off against former Solicitor General Seth Waxman, now at WilmerHale, and Williams & Connolly’s Lisa Blatt, who has argued more high court cases than any other woman in history. The Biden administration will argue once on Schnapper’s side, the other against him.
Schnapper has argued cases before the justices in back-to-back weeks, but never two in a single week. “I put it in the category of be careful what you wish for,” Schnapper said.
National Law Journal’s Tony Mauro noted in a 2010 story about Schnapper that he’s been arguing at the court since William O. Douglas, appointed by Franklin Roosevelt, was a justice.
“Eric is a one-man show. He does it all himself,” Blatt told National Law Journal at the time. “He works around the clock and is devoted to his clients in a way you never see.”
Schnapper said in a SCOTUSblog interview posted on YouTube in 2014 that approaching a Supreme Court argument is like preparing for a football game. “You try to equip yourself the best you can for the things that will happen that you can’t foresee,” he said.
He stressed in the interview that he spends a lot of time thinking about questions that might come up and each one gets a page in a notebook he uses for preparation. “I’ll think of as many answers as I can. I’ll look up citations, I’ll try to find old opinions people wrote,” Schnapper said. “The time to figure out the answer to a question is not when it’s being asked.”
He’s won cases that expanded workplace protections, often working pro bono on behalf of employees. In 2010’s Thompson v. North American Stainless, the court unanimously sided with the fiancée of an employee who complained about workplace discrimination. And later that year, another unanimous opinion said that employees could be held liable for the discriminatory acts of their supervisors, in Staub v. Proctor Hospital.
The last time Schnapper—who teaches civil procedure, civil rights, and employment discrimination—argued at the court was in 2014 in a major redistricting dispute, Alabama Legislative Black Caucus v. Alabama.
Regardless of the outcome, the Oxford and Yale Law graduate says he plans to enjoy some time pruning his roses after he finishes the tech arguments.
“Roses don’t care” about your work schedule, he said.
The cases are Gonzalez v. Google LLC, U.S., No. 21-1333 and Twitter, Inc. v. Taamneh, U.S., No. 21-1496.
—With assistance from Robert Iafolla.
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