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.
Friends, the right to criticize the government is surely one of the most important rights protected by the Constitution. So we're pleased to report that Mount Pleasant, Wisc. City Attorney Chris Smith's vexatious defamation suit against our client, Kelly Gallaher—a local activist and critic of the Foxconn land grab, as well as a critic of Chris Smith—was dismissed this week. Smith demanded that Kelly never publicly speak or write his name again, but . . . that's not going to happen, Chris Smith. Click here to learn more.
- Rhode Island sued Shell, Chevron, and the other big oil companies on the theory that their role in global warming gives rise to claims under state law. The oil companies removed the suit to federal court, arguing for federal jurisdiction for a zillion different reasons. First Circuit: And all those zillion reasons are wrong. The federal judge was right to send you back to state court. [Ed. Note: Judge Thompson invokes "the mind-numbing complexities of federal removal jurisdiction," but we found her lively opinion quite engaging.]
- Allegation: After working for a member of one of the ruling families in the United Arab Emirates, U.S. citizen runs afoul of a different family member, leading to citizen's being prosecuted on various spurious charges in the UAE. At the UAE's request, Interpol then issues a "red notice" for the man and declines to remove that designation when the man points out that he'd be wrongfully convicted for political reasons. Back stateside, the man sues Interpol in federal court. Second Circuit: "Similar concerns about nations abusing Interpol's notice system appear in the news with some regularity." But the man is out of luck: Interpol enjoys immunity under the International Organizations Immunities Act.
- What's the difference between a bus advertisement that reads "Eat Mor Chikin" and one that reads "Eat More Chickpeas"? Fourth Circuit: Whatever it is, the test for figuring it out isn't subject to reasoned application. So Richmond, Va.'s prohibition on "political" content in bus ads is facially unconstitutional.
- Ever wonder whether the 1872 Amnesty Act applies prospectively? Sorry if this changes your plans, but the Fourth Circuit says that congressional exercise under Section 3 of the Fourteenth Amendment only applied to past insurrections or rebellions.
- Trying to serve notice is like walking through a minefield. But good news for the plaintiffs here, who have been trying to sue staffers at Baltimore County, Md. jail since 2016 over the death of their daughter: The Fourth Circuit says the district court could maybe let them walk through the field another time.
- When the SEC accused a hedge fund manager of violating securities law he got a trial . . . in the agency's own in-house courts, before the agency's own in-house "judge." Consistent with statistics showing the SEC enjoys a far higher win rate before its own judges—as opposed to in real court—the agency judge found the defendant guilty and imposed a $300k fine (among other penalties). Fifth Circuit: The SEC's system of in-house judges violates the Seventh Amendment and the non-delegation doctrine, as well as the Article II removal power. (For more analysis of the opinion, read here.)
- When the feds accused a Louisiana wastewater treatment facility of being responsible for an oil spill in the Mississippi River, the owners got a trial . . . in front of a judge (who found for the gov't). Fifth Circuit: Reversed. The Seventh Amendment guarantees a trial by jury here.
- Fifth Circuit: Now for the third time
in this age-discrimination case, we're going to tell the district court to allow the discovery our precedent requires. No need to send thethis case to a different judge, though. [Ed.: Thanks commenter John F. Carr for spotting the error.]
- Wikipedia describes the film Cuties as a "coming-of-age drama" about "a Senegalese-French girl . . . who is caught between traditional Muslim values and Internet culture when she joins a twerking dance crew." The district attorney of Tyler, Tex. describes it as child pornography. So he—and we stress that we are not making this up—indicted Netflix for distributing it. Read all about it in a tour de Fed Courts from the Fifth Circuit. There's habeas sought, mandamus denied, and abstention yet to be determined. The bottom line? Netflix is winning, but there's a lot of lawsuit left.
- As the pandemic seems to wind down, in the Sixth Circuit another mask mandate case bites the mootness dust, this time en banc. Except the dissent says it's really hard to tell what's moot and what's not in a once-a-century health crisis. Plus, the least the court could have done is dismissed the preliminary injunction as moot but allowed the rest of the case to continue.
- Seventh Circuit: In 2010, the Supreme Court failed to resolve the question of whether a state court decision could ever be a taking for purposes of the Fifth Amendment. Since then, other federal courts of appeals have carefully avoided the issue . . . which has been going great! Nobody here has standing! Case dismissed!
- In 2017, the Ninth Circuit, applying strict scrutiny, found no First Amendment problems with FBI national security letters, which require phone and internet companies to turn over customer info without informing the customer (or anyone else). A few weeks ago, the court denied en banc review, and the panel issued an amended opinion with a short new concurrence. Ninth Circuit (this week): The district court doesn't need to schedule periodic reviews of whether the nondisclosure requirements continue to be justified. If providers want judicial review, they can ask for it. It's of no matter that most don't.
- Does it violate the Fourth Amendment for the City of Los Angeles to require e-scooter companies to disclose to the government real-time location data for every one of their e-scooter devices? Ninth Circuit: Scooters (i.e., people who scoot, not the vehicles themselves) have no reasonable expectation of privacy over the location data collected by the e-scooter companies. No Fourth Amendment problem here.
- Allegation: While helping mobility-impaired friend into a car, man is accosted by San Diego police officer, who grabs, yanks, and punches him "for no reason." The man flees. The officer tackles him and beats him unconscious. Excessive force? Ninth Circuit: Could be. No qualified immunity. Dissent: "Ironically, the only person to have suffered any serious injury here during the foot pursuit was not the plaintiff; it was the officer"—who fell as he was giving chase. Anyway, plaintiff could have had a gun in his waistband, so the "distraction strikes" were reasonable.
- Allegation: Henderson, Nev. detectives in plainclothes tail an armed robbery suspect to a state courthouse, where they wait for him to exit. When he does, they tackle him without warning, breaking his hip. Excessive force? Ninth Circuit: The guy was acting calmly and had just been through a security screening. There was no reason to tackle him, and no qualified immunity for the cops.
- Mexican police officer—over protest—is assigned to guard a cartel leader. After the Mexican Navy captures the cartel leader, the officer tries to flee, but is caught and threatened by the cartel with being burned alive. Later, his brother-in-law is beaten by men in paramilitary uniforms, kidnapped, and never seen again. (The family is told that if they file a police report, they will all be killed.) The officer makes his way to America and seeks withholding of removal under the Convention Against Torture. Tenth Circuit: Merely threatening to burn someone alive doesn't rise to the level of torture, and Mexico is a big country with lots of places to hide. He'll probably be fine.
- Your humble editorial staff, no brown nosers on most days, does commend the Eleventh Circuit for Footnote 1 in this amended opinion, which makes gloriously clear what changed. (As opposed to the first Ninth Circuit opinion discussed above, which is merely clear.)
- Joining seven other circuits, and with a long look at Founding-era sources, the Eleventh Circuit finds that a federal law banning illegal immigrants from possessing firearms doesn't offend the Second Amendment. So no need to reconsider the conviction of now-deported man who drunkenly brandished a firearm outside a Tampa, Fla. taco stand. Judge Newsom, self-concurring: But we ought to reconsider using balancing tests to adjudicate fundamental rights, lest legislatures and judges invent new, unjustifiable restrictions on those rights. "After all, the Constitution guarantees that the right to keep and bear arms 'shall not be infringed,' not that it 'shall not be infringed unless by restrictions that are substantially related to an important government interest.'"
- Florida: Social media companies aren't entitled to First Amendment protection because their editorial practices—unlike those of newspapers—aren't protected activity and, in any event, they're common carriers, just like telegraph companies. Eleventh Circuit: That is not 100% accurate, so the preliminary injunction against Florida's new social media law is affirmed in substantial part.
- New York: You can't seriously contend that the First Amendment applies to legal advice about responding to debt collection actions, can you? S.D.N.Y.: Well, the Supreme Court has held it applies to legal advice to designated foreign terrorist groups, so it sounds like a safe bet. Accordingly, the nonprofit Upsolve, whose non-lawyer volunteers assist low-income New Yorkers in responding to debt collection lawsuits, is entitled to a preliminary injunction against the state's unauthorized practice prohibition. (IJ filed an amicus brief in this case.)
- And in amicus brief news, IJ is asking the Ninth Circuit to reverse the dismissal of a case against a TSA agent who digitally penetrated and fondled a traveler. Though the Federal Tort Claims Act specifically allows claims against "investigative or law enforcement officers," the district court ruled that TSA screeners are not "traditional" law enforcement officers—a limitation that does not appear in the text of the FTCA. (The court also dismissed the Fourth Amendment claims against the agent, holding that TSA agents simply can't be sued for violating the Constitution. That part of the ruling is not being appealed.) In short, according to the gov't, you may have a right not to be sexually assaulted by the TSA, but there's no remedy if you are.
As a young man, Joe Armstrong worked for WJBE, a radio station in Knoxville, Tenn., owned by musician James Brown. And 10 years ago, Armstrong revived the station after it had fallen on hard times. Today, it's the only Black-owned and Black community focused station in the area. But the FCC is trying to take away Joe's broadcast license because of an old, irrelevant tax conviction, for which Joe served his sentence and paid his fines. "One in three Americans has a criminal record and laws that impose permanent punishments go beyond the sentences handed down by judges and juries," says IJ Attorney Daniel Nelson. "People deserve the opportunity to make a fresh start by using their skills and talents." Click here to learn more about IJ's latest case.