President Joe Biden will tap Judge Ketanji Brown Jackson for the vacancy on the U.S. Supreme Court, according to multiple news reports. Brown sits on the U.S. Court of Appeals for the D.C. Circuit, which is the principal court for appeals for Federal Communications Commission decisions.

The D.C. Circuit has been the launching pad for a number of Supreme Court nominees, most recently Brett Kavanaugh, and prior to that President Barack Obama's failed attempt to seat Merrick Garland. Biden last year made Garland the attorney general, with Jackson replacing him on the D.C. Circuit.

Also coming from the D.C. Circuit were current Chief Justice John Roberts and the late Justices Ruth Bader Ginsburg and Antonin Scalia.

Jackson, who has been in the conversation for the open Supreme Court seat since before Biden promised to name the first Black woman to the court, is the former vice chair of the U.S. Sentencing Committee and most recently served on the U.S. District Court for the District of Columbia. She also clerked for the justice who stepped down to create the vacancy, Justice Stephen Breyer.

Jackson is a Harvard Law School graduate, where she was a supervising editor on the Harvard Law Review.

She is a member of the Judicial Conference Committee on Defender Services, the Harvard University Board of Overseers and the Council of the American Law Institute. She is also a board member of the D.C. Circuit Historical Society and the United States Supreme Court Fellows Commission. ■

It’s back to court for Net Neutrality.

In separate filings to a U.S. District Court in California, four communications trade associations and the U.S. Department of Justice filed requests this week to block California’s net neutrality law because, they contend, current FCC rules preempt the state law. Such state measures “impose burdensome requirements on ISPs” and impair broadband access “by requiring each ISP to comply with a patchwork of separate and potentially conflicting requirements” in various areas, said the four groups in their joint filing: NCTA – The Internet and Television Association, ACA Connects – the American Cable Association, and CTIA – The Wireless Association and USTelecom – The Broadband Association.

The suits come a month after Mozilla and other mostly-California-based tech firms decided not to pursue their appeal of the FCC net neutrality order to the Supreme court.

Related: Mozilla Drops Appeal of FCC Net Neutrality Decision 

In its suit to overturn California’s SB-822 law, DOJ said the legislation revives the FCC’s 2015 Open Internet Order, which was replaced by the agency’s 2017 Restoring Internet Freedom Order, the benchmark rule of the early Ajit Pai FCC.

DoJ had previously sued California shortly after the law was enacted in 2018. 

The trade associations’ request for a preliminary injunction in the U.S. District Court for the Eastern District of California (in Sacramento) calls the California Internet Consumer Protection and Net Neutrality Act of 2018 “unconstitutional state regulation.” They contend that it was “purposefully intended to countermand and undermine federal law” by imposing broadband limitations and adding “even more restrictive regulations.”

“SB-822’s ambiguous restrictions on paid interconnection agreements between ISPs and edge providers create uncertainty that will harm ISPs’ businesses,” the groups said, arguing that the state law will influence ongoing commercial negotiations with edge providers, transit providers, CDNs and other Internet network operators.”

Related: California Senate Approves Net Neutrality Rules 

In addition to California, three other states (Washington, Oregon, and Vermont) have enacted state-specific net neutrality legislation. Six other states (Hawaii, Montana, New Jersey, New York, Rhode Island, and Vermont) have issued executive orders establishing state-specific net neutrality obligations. There is significant variation among these state measures.

The Vermont Attorney General has agreed to hold off net neutrality litigation in that state pending a decision in the California case, according to ACA Connects. The association and other organizations entered a stipulation last week to stay enforcement of the Vermont law pending further discussions between the groups and Vermont officials.

Global tech trade association ITI has commended the Supreme Court for its landmark gay and transgender civil rights decision.  

That was among the many reactions from tech, communications and policy circles to the news.

“An inclusive and diverse workplace makes our communities and our companies stronger,” said ITI President Jason Oxman. “This historic decision ensures that employees across the United States are protected by law from discrimination based on sexual orientation and gender identity in the workplace. Our industry stands with our LGBTQ employees and partners to celebrate this significant milestone and continue the ongoing fight for equality, including urging the U.S. Senate to pass the Equality Act. 

The High Court, in a 6-3 decision, has held that the 1964 Civil Rights Act prevents discrimination by an employer on the basis of sexual orientation, a huge victory for the civil rights of the LGBTQ community. 

The court reversed an 11th Circuit Court decision that an employer could fire someone for "simply being homosexual or transgender." 

Conservatives joining the liberals in overturning the 11th Circuit were Justice Neil Gorsuch, who penned the decision, and Chief Justice John Roberts.  

Dissenting from the decision were Justices Samuel Alito, Clarence Thomas, who joined in a dissent written by Alito, and Brett Kavanaugh, who wrote his own dissent.  

Also weighing in from Washington was FCC Commissioner Jessica Roswenworcel, who tweeted:

[embed]https://twitter.com/JRosenworcel/status/1272561124127449088[/embed]

Verizon said in a statement: "Today’s historic ruling by the U.S. Supreme Court is a victory for Verizon employees and millions of American workers. We fully support equality for LGBTQ+ individuals and have long advocated for these issues."

Earlier this month, Verizon was named one of the best places to work in terms of LGBTQ equality by the Human Rights Campaign Foundation.

“With this landmark court ruling the Supreme Court has recognized that discrimination against LGBTQ employees is not permissible under federal civil rights law," said Comcast CEO Brian Roberts. "We stand with the Human Rights Campaign and the hundreds of other companies that filed in support of LGBTQ inclusion and non-discrimination. This ruling is an important step towards equal treatment for the LGBTQ community and their families.”

“We are a proud ally of the LGBTQ+ community and have long supported efforts to ensure employees feel safe, valued and heard," said AT&T senior VP and chief diversity officer Corey Anthony. "Since 1975, we have implemented polices prohibiting discrimination against employees based on sexual orientation. AT&T also joined many companies in filing an amicus brief last summer in support of this outcome. We agree with today’s U.S. Supreme Court’s decision and look forward to continuing to champion an inclusive culture that encourages, supports, and celebrates the diverse background of our employees and society.”

"Diversity is our national special sauce which fosters innovation," said Consumer Technology Association President Gary Shapiro. "Today's historic Supreme Court ruling protecting LGBTQ+ people is a landmark victory for freedom and diversity, which will continue to propel our country's entrepreneurial spirit forward. Our nation was created to be, and continues to serve as, a beacon for freedom, liberty and equal opportunity, and today's ruling ensures that we continue to be a country where anyone can invent, create and do business. This decision upholds these values and helps ensure all Americans can be their best selves."

NCTA–The Internet & Television Association wants the U.S. Supreme Court to recognize the First Amendment burden of public, educational and government (PEG) channels when it weighs in on a case involving a programmer and the manager of a New York PEG channel.

At issue: Does a public-access programming producer have a First Amendment right to have that programming aired on a PEG channel, in this case a channel run by Manhattan Community Access?

In an amicus brief, NCTA said the case can’t be considered without acknowledging the First Amendment rights of the cable operator, which owns the network over which both sides argue they should be able to exercise control.

“While the question of whether the PEG-channel requirement is itself constitutional is not directly before this court, it is the backdrop against which this court is deciding the actual questions presented here,” NCTA told the court. “Regardless of how the court comes out on these questions, the First Amendment rights of cable operators will continue to be burdened. The court should recognize that fact in its opinion and should make clear that in resolving this case, the court is not implying or deciding that the PEG-channel requirement is itself constitutional.”

NCTA wants the PEG “forced speech” mandate to go away, as well as the TV station must-carry mandate. It has long argued that the justification for such mandates, that cable is a program-access bottleneck, no longer holds — if it ever did — because of the proliferation of outlets for content.

In the face of that changed circumstance, NCTA tells the court, cable should not be “subject to onerous carriage obligations that place them at a competitive disadvantage based on outdated evaluations of the market in which they operate.”

Whichever way the court rules, NCTA says, cable operators will come out on the short end, so the court should not make it a triple loss by presuming the PEG mandate is constitutional.

“If the court rules for petitioners, it will further cement petitioners’ control over channel capacity that rightly belongs to cable operators,” NCTA said. “And if the court rules for respondents, it means that no one will have the right to exercise editorial discretion over the programming carried on PEG channels, increasing the risk that they will carry programming that is not only of little interest or value to a cable operator’s customers, but also is offensive to those customers.”

WASHINGTON — It’s likely the reason that Supreme Court did not vacate the FCC’s 2015 Open Internet order at the same time it denied internet service providers’ appeal was that two conservative justices recused themselves: Chief Justice John Roberts and new Associate Justice Brett Kavanaugh.

The three other Republican appointees would have vacated the 2015 order.

Not vacating the order means it can be used by net neutrality groups challenging the Federal Communications Commission Republicans’ deregulatory Restoring Internet Freedom Order (RIF).

Justices don’t have to explain their recusals. But Kavanaugh was a judge on the U.S. Court of Appeals for the D.C. Circuit who participated in the en banc decision on whether to review the panel decision to uphold 2015 order. He dissented from the decision not to hear the appeal. This was before the 2015 order was mooted by the new FCC order.

Roberts’s 2017 financial disclosure statement included stock in Charter Communications and Time Warner, which would have become AT&T stock after the merger if Roberts still held it, which court transparency group Fix the Court says was the case. That would almost certainly explain his recusal, though Fix the Court said Roberts participated in the June decision to deny cert in the case of AT&T Mobility’s advertised service plans, four days after the AT&T-Time Warner deal closed, so theoretically Roberts should have recused himself. That was likely an oversight, as last term Roberts recused himself from two Time Warner-related cases.

If Roberts continues to own the stock, that could take him out of play if the Justice Department’s appeal of the AT&T-Time Warner merger gets that far. Currently it is before the D.C. Circuit, which last week picked the three-judge panel that will hear the appeal Dec. 6.

Early in my career, I had the great fortune to do something amazing.

Like most young people, I did it enthusiastically, and without much knowledge of what I was actually doing, or what was really happening.

I spent literally scores and scores of hours working on important legal matters with Judge Anthony Kennedy.

And that truly captured my attention.

A Great Law Professor

Judge Kennedy of the Ninth Federal Circuit of Appeals was my Constitutional Law professor during my first year in law school.

Because of how good he was, I did a lot more than study. I had notes everywhere. I bought every supplemental resource. I read every case two or three times. I insisted that our study group spend more time on Judge Kennedy’s remarks than any other professor’s. He was my favorite law professor, for lots of reasons.

On the last day of class, he spent a few moments to write a special personalized dedication to me, focused on his favorite justices, into the inside cover of my Constitutional Law text. I still treasure that.

With all that as pretext, one overriding message I got from him, and that just about anyone who worked to understand Constitutional Law should invoke, was the need for balance. That was “Balance” with a capital “B” (and probably best repeated a couple of times, to make sure you got it, because it was real important and real easy to lose). He preached that “Balance” often.

Years later, I took it a step further when I wrote to President Reagan in the 1980s, recommending Judge Kennedy as an associate justice to the U.S. Supreme Court. It was something I was very proud of then and for a long time afterward, including the two-sentence letter I got back from Fred Fielding, acknowledging my input. I still joke that my contribution to the process was why Judge Kennedy became a justice of the U.S. Supreme Court.

When, in the 1990s, I was sworn into the bar of the U.S. Supreme Court, Justice Kennedy was sitting at his SCOTUS bench in D.C.; he later wrote a kind note of congratulations, along with Justice Bryon White.

Flash Forward: 2018

Yet things have changed.

And so has that “Balance.”

Indeed, I truly wonder if “The Judge” believes it is still being adequately achieved?

Donny Deutsch, a Jew, a self-described conservative businessman, and a member of a minority group with a lot to lose, said it quite well when he decried a recent U.S Supreme Court decision that he said scared him quite a bit. He noted that the SCOTUS — led by Chief Justice Roberts and a retiring Justice Kennedy — had just given the U.S. president the right to do (I paraphrase) just about anything under the heading of the chief executive’s command over national security.

That also caught my attention.

As he often does, Deutsch did a remarkable job of clarifying the decision and its import. (Deutsch’s — and notable others’ — comments are certainly worth seeing online during an eight-minute YouTube video, especially at 1 minute 25 seconds.

Worrisome Times

As it relates to our democracy, and to our “Balance, with a capital B,” what is particularly worrisome right now are two things:

One is that the U.S. Supreme Court is losing that compass that aims unfailingly toward that “Balance.”

The second is that the U.S. media still struggles to remind its citizens, including all branches of our government, that re-establishing that life-saving Balance is a lot more important than allowing any U.S. president to ever do “just about anything,” by claiming it is done for the sake of “national security.”

Examples abound.

Prior presidents, from Republicans to Democrats, from Nixon to Clinton, have tried and tried to outduel the media, and the courts. Occasionally those presidents have won, but mostly they have lost, thanks in some real measure to that Balance applied by the judicial branch of the United States of America.

Thus, when Richard Nixon tried in the 1970s to squash a free exchange of information, the U.S. Supreme Court ruled 9-0 that he could not, and that he would have to produce “our” Watergate tapes. Similarly, when Bill Clinton some 25 years later tried to avoid a legal jeopardy in the Paula Jones and Monica Lewinsky debacles, again the U.S. Supreme Court found that Balance, in its decisions to hold him accountable to the people, through our media and our courts, during his presidency.

Our current president, Donald Trump, provides yet another example of trying to take undue advantage of his power, in part by firing and relentlessly attacking those who would investigate him, calling the media an “enemy of the people,” and suggesting to audiences that they be harmed (and that he be immune).

One must ask: Would Judge Kennedy have allowed Richard Nixon to hide his tapes based upon a Nixon claim of “national security?” Or would The Judge and Justice have permitted Bill Clinton to avoid regulation, simply because “being president takes a lot of time,” as the current candidate for SCOTUS associate justice has opined? Would he have found Balance in either of the positions maintained by those two presidents?

As for future presidents, they, too, must be constantly reminded of their infallibility, not vice versa. They, too, need to recognize, appreciate, and ideally, even practice that ever healthy Balance.

Broad Standards + Politics = Broad Imbalance

One reason why a “national security” standard is so problematic is that it is so incredibly broad. Judge Kennedy used to point out case after case that was either rightly or he thought not rightly decided based upon a standard that was too broad. “Too broad” meant “Not Balanced,” he taught us. It was hard to dispute then, and these days, it remains so.

With life and so many issues getting more and more complex, to have specific standards that address specific details and specific cases certainly means a lot more work, but more importantly (and making that work worthwhile), it means getting it right. It means “finding that Balance.”

When a current candidate for the SCOTUS states outright that a president cannot, under any circumstances, be told what to do or be prosecuted by outside authorities, that, too, creates more problems, because it creates a broad sweeping standard, which, again by Judge Kennedy’s definition, is Not Balanced. Then, to simply state that the sole solution is “impeachment,” creates a further problem with Balance. That is because impeachment, too, is a grossly inadequate solution, based upon a standard of unequal Congressional representative and electoral power, held by a smaller number of representatives, representing a smaller number of actual citizens.

Further, when current candidates for the SCOTUS are selected by our president, based largely, he has stated, upon a standard he selects of their willingness to overthrow just one established case precedent of 50 years, that two thirds of Americans strongly support, that, too, creates concerns for basic Balance.

Within a democracy, a relatively small minority telling a much larger majority what to do is not Balance.

Our country’s and the U.S. Supreme Court’s decisions show us we get closer to both keeping and achieving cherished individual freedoms — such as the 1st, 2nd, and almost all the other amendments — by achieving more Balance, not less.

Balanced Courts = Broad Democracy

Ultimately, in the 242 years of our democracy, alleged crimes are timely presented to juries. This clearly imperfect solution remains the most Balanced and just we have. Conversely, more today, crimes presented for judgment to Congressmen, Congresswomen, and Senators, or even to members of the U.S. Supreme Court, become less and less Balanced, again because politics are so deeply involved.

An additional lack of Balance arises from political interests trumping the truth, and our media’s coverage of that truth, taking us yet further from our democracy.

In short, in order for the system of democracy to work, the referee on the field has to exhibit fairness in the form of Balance.

This is the time we need the U.S. Supreme Court to return us to our Better Balance.

Indeed, this is the time we need more than ever a new U.S. Supreme Court associate justice who will help to give us back that Democracy (this one, similarly, with a capital D).

Summing up, we have a long ways to go — and, we hope, we will have to convince a limited number of courageous jurors, legislators, and executives, as well as voting citizens — before we reach that all-critical Balance that Judge Kennedy taught us all in law school.

It’s the same Balance modeled to Justice Gorsuch and Judge Kavanaugh, as Justice Kennedy’s clerks, and to thousands of others like us who were fortunate enough to have studied under, worked for, and learned from both the Judge and Justice known as Anthony Kennedy.

Jimmy Schaeffler is chair and CSO of The Carmel Group, a streaming/broadband, broadcast, and pay TV/video consultancy based in Carmel-by-the-Sea, Calif. 

WASHINGTON — A Supreme Court decision dealing with credit card merchant fees has dealt a blow to antitrust enforcement in general, according to its critics, some of whom say it will decrease antitrust curbs on big tech companies and allow them to be the price regulators of their own markets.

The June 25 ruling comes at a time when edge providers are under increasing scrutiny from bipartisan members of Congress looking to ramp up such curbs.

Related: Delrahim Says Antitrust Can Still Get at New Business Models

Dissenting justices in the 5-4 decision appeared to agree on the antitrust impact, saying that the ruling allows a company “to demand contractual protection from price competition.”

The case was Ohio v. American Express, and the court ruled that American Express’s attempts to keep merchants from discouraging use of Amex cards, and thus saving the Amex merchant card fees over competitors with lesser merchant fees, was not a violation of antitrust.

The decision upheld a ruling by the 2nd U.S. Circuit Court of Appeals, which had overturned a district court decision.

It was another antitrust court defeat for the federal government (joined by some states), which had argued that Amex’s anti-steering (nondiscrimination) provisions in contracts with merchants violated the antitrust. Justice also recently lost its challenge to the AT&T-Time Warner merger.

Related: AT&T, Time Warner Cleared to Merge

Sandeep Vaheesan, policy counsel at the Open Markets Institute (OMI), said that for antitrust plaintiffs, “the new legal burdens further reduce the already slim chances of success in court. The costs and complexity plaguing antitrust litigation will only become significantly worse following [the] decision.”

The court said Amex’s policy of preventing merchants from steering customers to other cards without fees did not unreasonably restrain trade. In fact, they said, anti-steering provisions “can prevent retailers from free-riding and thus increase the availability of ‘tangible or intangible services or promotional efforts’ ” that enhance competition and consumer welfare.

“Perhaps most importantly, anti-steering provisions do not prevent Visa, MasterCard or Discover from competing against Amex by offering lower merchant fees or promoting their broader merchant acceptance.”

Writing for the four dissenting liberal justices, Steven Breyer, Ruth Bader Ginsburg, Sonya Sotomayor and Elena Kagan, Breyer wrote that the majority decision was contrary to basic antitrust law and ignores evidence from the district trial.

“If American Express’s merchant fees are so high that merchants successfully induce their customers to use other cards, American Express can remedy that problem by lowering those fees or by spending more on cardholder rewards so that cardholders decline such requests,” Breyer wrote. “What it may not do is demand contractual protection from price competition.”

Party-Line Ruling

If that is how the anti-steering provisions work, then yes they can, according to the majority, which obviously did not see it that way.

“U.S. law has traditionally viewed credit card corporations (such as American Express) and communications corporations (like AT&T) as intermediaries and facilitators of other people’s business,” OMI said. “This decision, however, establishes these platforms as de facto regulators of these markets.”

Gene Kimmelman, CEO of Public Knowledge, said the decision will “open the door for communications and internet platforms to continue building dominant market positions virtually impenetrable to innovation from smaller competitors.” It puts an exclamation point on the need for Congress to step in, given that it will make it “significantly” tougher to police tech platforms for antitrust, he added.

WASHINGTON — Supreme Court nominee Neil Gorsuch refused to be drawn into a debate about dark money and disclosure of political ads during questioning by Sen. Sheldon Whitehouse (D-Rhode Island).

Whitehouse pointed to a $10 million ad campaign being mounted by supporters of his nomination, but whose actual backers had not been disclosed. The senator asked Gorsuch if there is a public interest in knowing who was contributing to that campaign.

The veteran U.S. appeals court judge responded that if Congress wanted there to more ad disclosure, it had "robust authority" to do so, but that he was not going to be drawn into politics and that it was not his fault if Congress had not passed such a law requiring the disclosure of so-called dark money.

Various Democratic legislative attempts to boost disclosure since the Citizens United decision have failed to gain traction, including with enough Democrats.

Gorsuch did say that that there was a value in anonymous speech, which the Supreme Court had found in a case where it concluded that disclosure could be a weapon to help silence people.

Whitehouse said that the Supreme Court had gotten into politics through the Citizens United decision — which allowed corporate funding of political ads — but Gorsuch said he saw it as judges presented with a case doing their best to decide it on the facts and the law.

He said judges make half the people unhappy 100% of the time and he did not question their motives. Whitehouse said in the case of Citizens United, it was more like making 90% of the people unhappy.

Whitehouse pressed the judge on whether the $10 million campaign pushing his nomination was of concern.

A slightly testy Gorsuch said there were a number of things he regretted about the nomination process, including the fact that Byron White's confirmation hearing took 90 minutes and he was allowed to smoke during it, as well as the fact that Gorsuch was putting his family through it. But he said that Congress made the laws, and if they wanted to pass a disclosure law, they could.

WASHINGTON — The Federal Communications Commission won a big victory in a federal appeals court with a ruling that the agency had sufficiently justified its Title II-based approach to network-neutrality rules. But the last chapter has yet to be written in the years-long legal battle.

Internet-service providers have vowed to continue the fight, either by appealing the three-judge panel decision to the full U.S. Court of Appeals for the D.C. Circuit, or by going straight to the U.S. Supreme Court.

Some interested parties huddled with reporters after the decision to talk about the implications of the court’s call and prospects on appeal.

POTENTIAL LINES OF APPEAL

Network-neutrality detractors seemed to agree that the FCC’s decision to reclassify wireless under Title II of the Communications Act might be fruitful ground for appeal, given the distinctions the FCC had previously drawn between wired and wireless, though they were not handicapping prospects for success.

Another possibility at the Supreme Court, said Russ Hanser, partner at Wilkinson Barker Knauer, was what might be a nascent doctrine at the Supreme Court regarding reviews of particularly important agency decisions, in which agencies have “reshaped” the statutory authority bestowed by Congress.

Attorney Andrew Schwartzman, who supports the Title II-based rules, wasn’t buying that argument. He called “fanciful” the suggestion the Supreme Court wants to cut back on traditional deference by suggesting some cases are “too big” for Congress to have meant to delegate its authority.

“The Supreme Court has already said [in the Brand X case upholding the FCC’s previous definition of Internet access as an information service] that the reclassification issue was properly delegated to the FCC,” Schwartzman said. “I doubt that there is any other statute in the last few decades which so clearly delegated so much to the FCC for decision.”

Hanser cited a case involving the Affordable Care Act (aka Obamacare), in which the Supreme Court said in cases of such national importance, the court’s traditional deference to agency decisions might be more limited. That calls into question how much discretion agencies have, he said.

When Congress gave FCC forbearance authority, Hanser added, most people saw that as a deregulatory move. “There seems to be something strange to use it to vastly expand regulation, just not as far as it otherwise would have been expanded,” he said.

He would not be surprised if appeals of the rules to the Supreme Court focused on how much authority agencies have to create regimes different from the ones anticipated in the statute, he said.

Seth Cooper of free-market think tank Free State Foundation thinks the FCC’s general-conduct standard is another weak spot in the court decision.

“The D.C. Circuit’s light-touch review of a heavy-handed regulatory order offered an unsatisfying analysis of the general conduct standard, too eagerly downplaying its vagueness,” Cooper said in a blog post.

Cooper said the vagueness issue should be brought up on appeal, but an as-applied challenge could also be the legal vehicle to challenge the network-neutrality rules. If the FCC was to make a ruling based on the general-conduct standard — by disallowing zero-rating plans, for instance — an as-applied challenge to that decision could be a way to get a fuller vetting than the D.C. Circuit provided.

LOW ODDS ON REVERSAL

Schwartzman was not shy about offering up odds on an appeal, saying the chances for reversal are “close to zero.”

Given that the dissenter in the case — Judge Stephen F. Williams would have remanded the decision back to the FCC — was focused not on the agency’s power to reclassify (which the court upheld), but on how the FCC applied the law, the “core legal issue” is not in play, Schwartzman pointed out.

The only reason to seek rehearing is a tactical one to put off going to the Supreme Court until there is a ninth justice in place, Schwartzman said.

As to the Supreme Court, Schwartzman said there is no split in the circuit for it to resolve, and “it has already said that the central provision is ambiguous, and even Judge Williams agreed that the FCC has the power to reclassify. The only other issues in the case are garden variety administrative law statutory questions of no interest to the Supreme Court plus a nearly frivolous First Amendment question.”