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The Supreme Court amped up its argument docket Monday by agreeing to decide two contentious legal issues: whether corporations can be sued in U.S. courts for faraway human rights violations, and a classic First Amendment battle over false claims of military heroism. The Court’s actions came in an orders list issued without the Court actually convening to announce it from the bench. We wrote about that rare happenstance here. The cases will be argued in February or later. The Court granted review in Kiobel v. Royal Dutch Petroleum, one of several long-running lawsuits in U.S. courts involving foreign activities that have been a thorn in the side of major international corporations. Twelve Nigerians brought the case under the U.S. Alien Tort Statute, claiming that the oil company participated in torture, killings and other abuses to suppress protests against oil exploration in Nigeria in the 1990s. A divided panel of the U.S. Court of Appeals for the 2nd Circuit ruled that, as a jurisdictional matter, corporations cannot be sued under the law, first passed in 1789. The decision ran contrary to an 11th Circuit ruling, and other lower courts have accepted similar cases in which jurisdiction was not questioned. The petition for review called the 2nd Circuit decision a “radical overhaul” of the application of the law, creating a “blanket immunity for corporations engaged or complicit in universally condemned human rights violations.” Paul Hoffman of Schonbrun DeSimone Seplow Harris & Hoffman in Venice, California filed the petition. Shell, represented by Rowan Wilson of Cravath, Swaine & Moore in New York, asserted there was no circuit conflict, and urged the justices to deny review. The Kiobel case will be consolidated with another case granted today, Mohamad v. Rajoub, which asks the same jurisdictional question but relates to a different, though related law: the Torture Victim Protection Act of 1991. In this case, the defendant was a foreign government agency, not a person. The plaintiffs sued the Palestinian Authority over the death by torture of their son. The U.S. Court of Appeals for the D.C. Circuit ruled that “only a natural person” can be sued under the law. Robert Tolchin of the Berkman Law Office in Brooklyn New York filed the petition for plaintiff Asid Mohamend, and Laura Ferguson of Miller & Chevalier in Washington represents the Palestinian Authority. The First Amendment case granted today is United States v. Alvarez, asking the Court to decide whether the Stolen Valor Act of 2005 violates the First Amendment. The law makes it a crime to falsely claim having been awarded a military medal or decoration, including the Medal of Honor. Xavier Alvarez, a member of a California water district board of directors, was convicted under the law after stating at a public meeting that he was a retired U.S. Marine who had been injured in combat and given the Medal of Honor. It turned out he never served in the military at all. In a string of rulings in recent terms, the Court has given First Amendment protection to a range of unpopular expressions, from videos of animal cruelty to virulent protests at military funerals. Whether the Alvarez case will continue the trend is uncertain, however. A divided U.S. Court of Appeals for the 9th Circuit struck down the law, exposing differences that could also split the justices. The panel majority found that while the Supreme Court has said false statements deserve no First Amendment protection, it has not carved it out as a category of unprotected speech, as it has with obscenity or defamation. The 9th Circuit denied en banc review, but not without several separate statements. Judge Alex Kozinski agreed the law was unconstitutional and made a slippery-slope argument that if the law were upheld, it would lead to “thought police” punishing “the white lies, exaggerations and deceptions that are an integral part of human intercourse.” But influential Judge Diarmuid O’Scannlain, joined by six colleagues, dissented from denial of en banc review, asserting that a clear line of Supreme Court cases denies strict scrutiny treatment of restrictions on false statements. In his petition for review, Solicitor General Donald Verrilli Jr. defended the law as a valid way to protect the “integrity and efficacy of the government’s military honors system.” By targeting only knowingly false representations, he said, the law gives “adequate breathing space” to satire or parody that might include military medals. Alvarez is represented by Los Angeles deputy federal defender Jonathan Libby. Tony Mauro can be contacted at [email protected].

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