Short Circuit: A roundup of recent federal court decisions

Scraping content, throttling data, and decency on the internet.

|The Volokh Conspiracy |

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.

NEXT: Broward County Cop Ignored Training, Told Deputies to Form Perimeter Instead of Confronting Nikolas Cruz

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  1. Typo on the sixth circuit. Its highland park Michigan, not Illinois.

    1. Fixed. Thanks!

    2. ha, yes, that would be rather shocking in Highland Park Illinois

  2. “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.”
    So the police had a warrant that specified where the guy was, officer assigning the warrant ignored that, and told officers to go to a different address. They claimed they saw someone inside the home (no one was home). Claimed they had reason to believe the guy was OD-ing inside (no explanation given, considering no one was home).
    While the “emotional distress” and trespass claims are excessive, the complete excusing of ANY responsibility seems wrong. Not even a small payment for the cleaning up the mess from when the officers used a fire extinguisher to scare off the couple’s dogs?
    I guess they should just be grateful that the dogs weren’t shot, considering how often that happens.

    “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).”
    There’s a law BANNING homes for disabled people being too close to each other? Why on Earth…?

    1. The ban here seems to be on on multiple unrelated people in separate families living together in a house zoned for single-family residence. The fact that the group-home was for the disabled is entirely unrelated to the restriction.

      See also Village of Belle Terre v. Boraas

      1. Ah. Thanks, that makes more sense; just awkward phrasing on the summary, then.
        Still – I’ve lived in areas that banned group homes entirely (for good reasons), but if the town views them as a problem, why allow them to be one out of every 10-20 homes?

        1. It seems plausible that the city might believe (pick any/all of the following):

          – Group homes for the disabled are a positive social good
          – Interspersed into a residential area at low density they will not adversely impact the neighborhood
          – That the appropriate density is no more than 1/20 otherwise-single-family homes

          This is all eminently reasonable logic.

  3. The police might have ” had an objectively reasonable basis to search the home”, but they didn’t have a warrant to search the home, so why should it matter?

    1. Perhaps you should try reading the opinion? The very first sentence explains:

      In this opinion, we bring our circuit law into conformity with the Supreme Court’s precedent on the emergency aid exception to the Fourth Amendment requirement that a warrant be obtained before police entry into homes.

      The opinion then explains the scope of this clarification: that

      officers seeking to justify their warrantless entry need only demonstrate “‘an objectively reasonable basis for believing’ that ‘a person within [the house] is in need of immediate aid.'” Michigan v. Fisher, 558 U.S. 45, 47 (2009) (alteration in original) (internal quotations omitted). They do not need to establish that their belief approximated probable cause that such an emergency existed. We thus modify our previous pronouncements in United States v. Martins, 413 F.3d 139 (1st Cir. 2005), and its progeny.

      1. But they obviously didn’t have an objectively reasonable basis for believing that a person within the house is in need of immediate aid, as they had been told he was not in the house and there was no one in the house for them to think was in need of aid.

        1. Thank heaven for small favors; they didn’t kill the dogs.

          It is just amazing how far courts will go to cover for cops. That the cops didn’t bother to read the warrant is dismissed with a one sentence hand wave that “hindsight is 20/20.”

        2. I totally agree, here. They should explain how a moving curtain could possibly indicate a need for emergency aid. The opinion doesn’t even try to present a case for reasonable belief an emergency existed. Can any made up half story be used as justification to enter without a warrant?

          And they do go on to explain how 6 people apparently looked at the warrant and none noticed it wasn’t a warrant for that house?

          The police get away with doing way too much damage, with no good legal justification, as they did here. And it does seem courts will bend over backwards to cover for their bad behavior. And, yes DM, I was also shocked indeed that ‘subdued the dogs’ wasn’t a terrible euphemism.

  4. 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.

    Coming to every locality soon – – – – – – – –

    (I love the part where all the cops admit they do not read the warrants.)

  5. “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.”

    LOL! What a joke. If Congress doesn’t change the law in the way you like, just make some determination that the change you desire is “comparable” to other laws they have passed, even 50+ years ago.

    1. And they ignore 70 years of Congress addressing the issue by not passing ENDA or it’s predecessors which have been proposed nearly every year.

      Our judicial system is garbage.

  6. In attempts to defend democracy, I’ve defended some very liberal views. This time I’m going to defend some very conservative ones.

    I’m going to point out a couple of things about the civil rights laws:

    1. They were traditionally regarded as morals laws. When the Supreme Court first upheld them in Atlanta Hotel, it compared them to laws against lotteries, prostitution, gambling, etc.

    2. Federal courts traditionally described their purpose in moralistic terms – eradicating evils, scourges, invidiousness, etc., very similar rhetoric to how states traditionally explained sexual morality laws as eradicating perversion etc. from domestic life.

    3. Objectively, if I ask for a job and a person tells me they don’t want to give me one because of my sex, I’m in exactly the same physical position I’m in if I ask for a date or make a marriage proposal and the person tells me they don’t want to because of my sex. In both cases, I don’t have that opportunity but am free to pursue any other. I’m not physically harmed. Objectively, I’m no worse off than if I hadn’t asked, in both cases, except for having wasted some of my time.

    5. So why treat the two differently? Why not treat people who want to be I same sex businesses the same as people who want to be in same sex marriages?

    6. The traditional stated reason why is that commerce is a lower thing than sex. Federal judges have said that sex is essential to human dignity, while commerce, business, and work isn’t.

  7. (Cont.)

    6. Federal judges have traditionally thought of a job as the property of the requester, theirs unless there’s a reason not to,while they’ve thought of domestic relationships as the property of the requestee. This is why they perceive job applicants as being harmed by sexual preference and same-sex businesses, while they don’t perceive date requesters as being harmed by them.

    7. But these are subjective assessments that don’t have any objective basis.

    8. They feel very strongly about these matters – SSB people are evil scourges who pervert the natural order of commerce, SSM people do no harm to others and people who dislike them are bigots. But is there an objective difference?

    9. The poet Kalimantan Ghibran famously said “our work is our love made manifest.” And there are millions of people who have gotten divorced because their relationship conflicted with their work, and work took priority. The idea that work is not a source of human dignity, respect, and personal identity, and is an inherently low activity whereas sex is an inherently high one, not only has no warrant in the constitution’s text, but is far from obvious if one looks at how many Americans actually behave.

  8. (Cont)

    10. Why should the SSB community suffer just because judges think them evil and perverse?

    11. It is one thing for judges to use their office to strike down laws that impede people they personally think shouldn’t be impeded. After all, the Framers considered but rejected giving judges a general veto power over laws. It might be a good idea.

    12. But it is something else entirely for judges to create judge-made law designed to hamper and oppress people they happen not to like and think evil, solely because they think them evil.

    13. The power to create positive law designed to keep others from participating in commerce is much greater power than a veto power. An all-powerful judiciary, able to create legislation to strike at its enemies without warrant from framers or legislatures, becomes the most dangerous branch.

    13. As I’ve said before, I think the same-sex business community has the same constitutional rights as the same-sex marriage community. Of course there are plenty of good reasons to treat them differently as a policy matter. But it is not the role of judges to judicially create their own morals legislation.

    14. I think it is Orwellian for judges to put their thumbs in the scales on behalf of favorites and against enemies, simultaneously decrying animosity when their friends are involved while expressing that same animosity, in virtually identical rhetoric, against their enemies.

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