The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.
The underlying premise of the Supreme Court's rational-basis doctrine is that the legislative and executive branches should have broad discretion to regulate the economy—and can be trusted to do so. But a review of funeral industry laws indicates that perhaps this trust is misplaced, argues IJ Senior Attorney Jeff Rowes in the Wake Forest Journal of Law & Policy.
But if the Supremes remain hesitant to protect the right to earn an honest living, perhaps there is another way. Thirty-three states' constitutions contain "Baby Ninth Amendments" that explicitly protect unenumerated rights, writes IJ Senior Attorney Anthony Sanders in a forthcoming Rutgers University Law Review article, and state judges are duty bound to enforce them.
- The Communications Decency Act is "something of a misnomer," as it doesn't promote decency, says the D.C. Circuit; rather it protects online speech, which "can often be several shades from decent." Accordingly, a sports apparel retailer cannot sue Google under the CDA for declining to remove a blog critical of the retailer's business practices. (Editor's note: The CDA was originally intended to promote decency.)
- Man overdoses; his sister petitions to have him civilly committed. A judge issues a warrant to apprehend him that says, in bold print, he's in hospital. Yikes! Taunton, Mass. police instead go to his parents' house, damage it. A Fourth Amendment violation? Officers had an objectively reasonable basis to search the home, says the First Circuit.
- FBI sting meant to catch drug dealing Puerto Rican police officers instead nets man who is not an officer. No matter; he gets "no-hope sentence" of life without parole. Which, says the en banc First Circuit, seems grossly excessive in light of several mitigating factors (like his lack of a criminal history) that we are nonetheless obliged to ignore; the Supreme Court should review this.
- Allegation: Long Island, N.Y. skydiving instructor is fired after homophobic customer complains about him. Can the instructor sue his former employer under Title VII—which prohibits sex discrimination in the workplace—for sexual orientation discrimination? Yes, says a divided Second Circuit, sitting en banc. Sexual orientation discrimination "is a function of sex." What's more, though few people would have understood Title VII to ban discrimination against LGBT individuals when the law was passed in 1964, such discrimination is a "reasonably comparable evil" to what Congress did intend to ban.
- Company scrapes content from 1,400 TV and radio channels, makes it available to company's subscribers in easily searchable form for $500/month—without permission from or payment to said channels. Fox News: Which is 100 percent a violation of our copyrights. Second Circuit: That is so.
- Three voters sue Virginia officials for racial gerrymandering and win on the merits in district court. The Commonwealth declines to appeal, but several U.S. Congressmen who'd intervened in the suit do appeal, prolonging the litigation several years (without altering the result). Must the Congressmen pay nearly $500k of the $1.35 mil awarded to plaintiffs? The Fourth Circuit says no: The unlawful gerrymandering was the Commonwealth's fault, and the Congressmen's appeal was not frivolous, so they need not pay any expenses. The Commonwealth must pay the entire award for plaintiffs' expenses it caused, but not those caused by the Congressmen.
- North Carolina trooper issues warning citation but extends the traffic stop because motorist (1) appears nervous; (2) has clothes, food, and an energy drink on hand; (3) doesn't remember an address he recently visited with aid of a GPS device; and (4) remarked that he buys cheap cars online. A drug doggie sniff turns up drugs. Fourth Circuit: Conviction vacated. None of those things is suspicious enough to justify extending the stop.
- Family calls police for help with mentally ill son, who they believe has a gun; Richland County, Ohio police shoot him dead in a bedroom. The officers say they heard a loud pop, so they fired; nothing that could have produced a gunshot-like sound is found near the body. Sixth Circuit: No qualified immunity.
- Allegation: Without warning, Highland Park, Mich. SWAT teams blasts down door of family home with shotgun at 4 a.m., detains everyone, including seven-year-old girl, at gunpoint. No contraband or suspects found! Sixth Circuit: No qualified immunity; the family can sue.
- Landlords complete significant renovations to enable three disabled renters to live in Springfield, Ill. home. Oh no! Two years later, it's discovered that there is another group home for disabled residents nearby, and the zoning code prohibits such homes within 600 feet of each other (in zones zoned for single-family residences). Can the city kick the three renters out? The Seventh Circuit says the district court did not err in barring eviction while the case proceeds.
- Four young men attempt to rob Rockford, Ill. pizza joint. An off-duty cop shoots all of them, killing one, a 16 year-old who was crawling away from the officer. (The other three are convicted of felony murder.) Seventh Circuit: The officer was responding to a chaotic, violent scene involving multiple assailants; no constitutional violation here.
- Allegation: AT&T did not adequately inform customers who purchased unlimited iPhone data plans that it would slow down their service once they exceeded a certain data limit and without regard to any actual network congestion. Can the FTC sue AT&T for engaging in unfair or deceptive acts or practices, or is the company a "common carrier" exempted from FTC oversight? No exemption for you, says a Ninth Circuit en banc panel; throttling data isn't a common carrier activity.
- Allegation: Nike's "Jumpman" logo of Michael Jordan (seen on Air Jordans and other merchandise since 1987) is based off a photo of Jordan (commissioned by Nike) that copied plaintiff's own photo of Jordan. Copyright infringement? Ninth Circuit (over a partial dissent): No. (Scroll to page 25 to compare the images in question.)
- In 2012, the feds terminate Southern California no-otter zone where otters are removed (by non-lethal means) to prevent them from eating shellfish that commercial fishers rely on. Fishers: So now we face criminal and civil liability just for getting near an otter, even though otter populations are healthy and shellfish may well be decimated. Ninth Circuit: The lawsuit otter be tossed; the fishermen lose.
- And in en banc news, despite six votes for a rehearing, the Fourth Circuit will not reconsider its holding that a publicly maintained 40-foot-tall cross, which honors the 49 soldiers from Prince George's County, Md. who fell in World War I, is an unconstitutional endorsement of religion.
In 2013, the Archdiocese of Newark, New Jersey began selling headstones to its parishioners along with a promise to care for the headstones in perpetuity—a service no headstone dealer offers. This displeased the state's headstone dealers and funeral directors' associations, who wrote, and convinced state legislators to pass, a bill banning religious cemeteries from providing headstones to their parishioners. Is the law an unconstitutional effort to smite competition or valid attempt at consumer protection? The latter, ruled a federal judge recently. Read more here.