Short Circuit: A Roundup of Recent Federal Court Decisions

Burning crosses, incurable violence, and filming in national parks.

Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.

New on the Short Circuit podcast: Minnesota appellate attorney Scott Flaherty joins the show to talk Indian Law. With a special guest appearance by Captain Ahab.

• Two judges say the National Park Service's permit-and-fee requirements for filmmakers violate the First Amendment. Unfortunately for the plaintiff, it's the district judge and the dissent. D.C. Circuit: The requirements are reasonable.
• A John Doe plaintiff alleges that he was put through a biased Title IX tribunal while a student at MIT. But before that can be resolved, we need to know if he can proceed pseudonymously. First Circuit: Which is a question that has bedeviled the federal courts. So here is some detailed-but-not-exhaustive guidance for how courts in this circuit should think about it.
• Members of the Shinnecock Indian Nation would like to fish in the Shinnecock Bay, but New York officials keep ticketing and prosecuting them. Tribe members: We have a right to fish in the bay based on these colonial-era deeds. District court: Congratulations! You've won the suing-the-gov't trifecta! You lose on sovereign-immunity grounds. And Younger abstention. And lack of Article III standing. Second Circuit: Actually, those defenses don't apply to at least some of these claims.
• Pennsylvania man pays off loan from the U.S. Dept. of Agriculture, but the USDA tells a credit reporting agency that he's in arrears, damaging his credit. Feds: Sovereign immunity; we can't be sued for any Fair Credit Reporting Act violations. Third Circuit (adding to a juicy circuit split): Reversed. The FCRA waives sovereign immunity by allowing civil damages claims against "any person" who violates the Act, and that plainly includes the federal gov't.
• Mississippi's constitution disenfranchises felons convicted of certain crimes. The section was originally adopted in 1890 and at a convention steeped in racism. It's since been reenacted twice—in 1950 and 1968—via legislative proposal and ratification by the people. Fifth Circuit (en banc, per curiam): The 1968 reenactment cleansed the provision of its previous discriminatory taint. Judge Graves, dissenting: A law expressly aimed at preventing Black Mississippians from voting cannot be saved via reenactment by a virtually all-white group of people who engaged in massive and violent resistance to the Civil Rights Movement—some of whom burned a cross on my grandmother's lawn, two doors down from where I grew up.
• Can a Baylor student sue the university for only providing online instruction during the Spring 2020 semester after the COVID-19 shutdown? District court: Get out of my courtroom. Fifth Circuit: "We espy a potential ambiguity in the definition of 'educational services' and remand for further consideration of that issue." Concurrence: Also, a "merger clause" ain't a force majeure clause. That'll be bad for Baylor on remand.
• Friends, you may remember the time the Fifth Circuit granted qualified immunity to Arlington, Tex. officers who tased a suicidal man who'd doused himself in gasoline, knowing it would set him on fire. It did; he died; and it burned down his family's house. This week, the Fifth Circuit (unpublished, over a dissent) says the district court was a little too quick to dismiss the family's claims against the city.
• Intoxicated San Antonio, Tex. man found sleeping in the driver's seat is arrested, spends over 16 months in pretrial detention before charges are dismissed. Fifth Circuit: The length of his detention is a "wretched commentary," but he can't sue the arresting officers.
• The Chief of Investigation for the Mississippi State Penitentiary at Parchman is fired for testifying at a criminal hearing on behalf of one of his investigators (who was criminally charged following a convoluted throwdown fight between investigators and prison officials). The now-former chief sues for First Amendment retaliation. Fifth Circuit: It's clearly established that a public employee can't be fired for testifying outside of their ordinary job duties. But mayhaps the chief's testimony was within his job duties, and it's not clearly established he can't get fired for that. Qualified immunity. Judge Costa (dissenting): But actually, it's obvious he wasn't testifying as part of his duties. He was subpoenaed by the criminal defendant, after all.
• Texas state troopers pull over man, smell marijuana, and then find a handful of ecstasy pills. He's arrested and they search the car, finding a small amount of pot plus "100 pairs of women's underwear, a number of sex toys, and lubricant," "children's school supplies" and three cellphones. Intrigued, the troopers apply for warrants to search the phones—ostensibly for drug dealing and based on the drug evidence only. Yikes! They find some child porn on the phones, which leads to a second set of warrants that then lead to almost 20k child porn images. Was there probable cause for the search? Fifth Circuit (en banc): "Close call" but who cares because the good-faith exception applies. Concurrence: Yeah, good faith, but we've got to be careful going forward with phones. People have a lot of stuff on them. Dissent: There was only evidence of drug possession, not drug dealing.
• After New Orleans officials began experimenting with a licensing scheme for allowing short-term rental on platforms like Airbnb, the city decided to scale things back, restricting such rentals to a single owner-occupied house per applicant. Out-of-state license holders—now rendered ineligible—sue, alleging violations of the Takings Clause and the dormant Commerce Clause. Fifth Circuit: The out-of-staters have no takeable property interest in the temporary licenses, but they can't be treated worse than locals.
• Sixth Circuit: It feels like this should be unnecessary, but if you are a defense attorney representing a Black man convicted of murder, and your goal is to keep him off death row, maybe don't have a shrink testify during the penalty phase that a huge proportion of Black people are incurably violent.
• Two off-duty Indianapolis officers choke bar patron unconscious, drag him facedown to parking lot, beat him still further, empty his wallet, and leave him covered in blood. Jury: The city needs to pay the man $1.2 mil. Seventh Circuit: On the contrary, the officers violated a bunch of city policies, and (under doctrine that your humble editor blithely asserts is wrong) the city can't be held liable simply for employing some baddies. (The officers were fired—but acquitted of felony battery.)
• After a local paper reported that Wisconsin financial adviser Thomas Batterman had been accused of mishandling funds and committing wrongdoing, he sued for defamation. But, says the Seventh Circuit, he cannot prevail because Wisconsin financial adviser Thomas Batterman had, in fact, been accused of mishandling funds and committing wrongdoing.
• Arkansas healthcare professionals cannot legally provide minors with or refer them for gender transition procedures, including medication and surgeries. Eighth Circuit: The law discriminates on the basis of sex, and the state hasn't met its burden of showing that the law is supported by an "exceedingly persuasive justification." Preliminary injunction affirmed.
• Overseer of federal consent decree gets five Oakland, Calif. cops, who fatally shot a homeless man, fired. A violation of the city charter? District court: No. Ninth Circuit: Vacated. The procedure to fire cops is a state-law issue, and this case should be in state court. Dissent: This case is all about what the federal consent decree requires, so it does belong in federal court.
• Kissimmee, Fla. seventh grader is having a bad hair day, and when his mom takes off his hoodie (to comply with the school dress code) he pushes her away. A school resource officer arrives, curses and mocks the 13-year-old for several minutes, and then slams him to the ground without warning. Eleventh Circuit: The officer had arguable probable cause to arrest him for battering his mother, so qualified immunity on the false arrest claim. But (over a dissent) it is "obviously clear" the officer used excessive force. (The officer was convicted of battery.)
• Eleventh Circuit: The FDA failed to consider vaping companies' marketing plans before denying approval for sale of their vaping devices and liquids. They need to go back and do that. Dissent: "SPOILER ALERT," we all know how that's going to turn out. Let's not waste everyone's time.
• On-duty Bureau of Indian Affairs officer threatens to arrest woman and have her children taken away if she does not have sex with him. (She does and has the officer's child; he's sentenced to three years in prison.) Feds: Ah, but she can't sue under the Federal Tort Claims Act because he was acting outside the scope of his employment. Montana Supreme Court: Wrong, she can sue. (IJ signed onto an amicus brief that urged the court to reach this result.)
• And in en banc news, the Seventh Circuit will not reconsider its decision that it did not violate the Eighth Amendment to deny an Illinois inmate access to exercise for two years. In concurrence, Judge Scudder says it's an issue that "cries out" for review in a different case.
• And in panel rehearing news, the Ninth Circuit will reconsider its decision that federal law does not preempt a California law that makes it a crime for employers to require unwilling employees to agree to arbitration as a condition of employment.

IJ client Visibly offers online vision tests to consumers so they can easily renew prescriptions for eyeglasses or contacts. But in 2016, South Carolina legislators overrode the governor's veto and banned such tests even though there is no plausible concern about their safety or reliability. We are pleased to announce, however, that after six years of litigation the South Carolina Supreme Court announced this week that our clients unequivocally have standing to challenge the law that bans them from operating in the state. To the merits!

Comments

[DaivdBehar]

after six years of litigation the South Carolina Supreme Court announced this week that our clients unequivocally have standing to challenge the law that bans them from operating in the state. To the merits!

Lazy assed, slow shuffling, donut munching government workers should be fired.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

"our clients"? What's this all about, Alfie?

[DaivdBehar]

The Deep State, which is the lawyer profession, is making an example of Donald Trump. Lawfare is misuse of tax funds for party purposes. Open season has justification, sunce the legal system is fully rigged annd not a remedy to attack.

[DaivdBehar]

The federal court has the validity and fairness of the Russian or Chinese judiciary. It is just a branch of the Deep State. The is a major threat to our democracy.

[Ben_]

Does Judge Graves really think that lawmakers' skin color allows him to invalidate laws?

[Ed Grinberg]

Ah, but what if you can prove they watched The Birth of a Nation? And liked it?! Then surely!

[PeteRR]

You know which other politician watched BOAN and liked it?

[Davedave]

Yes, in line with the US constitution and civil rights legislation. That is not in any way questionable or controversial, it's absolutely, firmly, and unequivocally established to be the case.

[Drew]

This is simply untrue

[Davedave]

Why tell such a flimsy lie, Drew? We know it's true, the sixties happened, civil rights are here to stay.

[Krayt]

I suppose you could hold a state constitutional amendmemt in conflict with a federal law or the federal constitution, but "I am a judge and don't like it, I hereby override The People in their creation of a constitution" is too much power.

We love democracy. Until we don't.

[ReaderY]

On the 6th Circuit death penalty case - as a direct result of the defense attorney’s assistance, the 6th Circuit reversed the defendant’s death sentence.

So if you want to keep an obvious guilty Black man off death row, it sounds like the defense attorney’s objectively effective and successful assistance strategy is exactly what you should do.

[Michael P]

8th Circuit must have some good drugs if it thinks that boy patients get make-me-a-boy gender transition treatments.

[mse326]

I'm not sure I understand what you are arguing. Haven't read the ruling seems to be a pretty straight forward application of Bostock. I am fully aware that many disagree with the opinion, I among them on legal grounds though not moral grounds, but it is precedent that circuit courts must follow

[Drew]

The equal protection clause isnt necessarily coextensive with Title VII

[mse326]

If anything Title VII would be more constrained since it actually lists the classes covered. But Bostock was pretty clear that discrimination based on trans status is discrimination on the basis of sex because you can't determine it without considering sex. There is no reason that that wouldn't apply to EPC claims too

[Drew]

Normally statutes provide a level of protection above and beyond constitutional minima.

Bostock relied on particular but for causation reasoning derived from the language of Title VII. I fail to see why that textual analysis must necessarily be grafted onto the EPC

[Michael P]

How do you think it's a straightforward application of Bostock? The logic there was essentially that letting men marry women, but not letting them marry other men, was unequal protection of the laws. But who is authorized to get gender transition surgery or drugs under these laws? Anybody? Or is it just illegal for everyone, much like other prohibited drugs or treatments?

[mse326]

That's Obergefell not Bostock. Bostock said discrimination on the basis on trans status is necessarilly discrimination based on sex.

[mse326]

And now reading the opinion they don't even feel the need to go to Bostock. Basically it is straight up sex discrimination because minor girls can get procedures minor boys cannot and vice versa.

[Michael P]

Ah. So the court adopts the "Title IX violates the Fourteenth Amendment" argument.

[mse326]

What? Title IX says you can't discriminate on the basis of sex. If you are talking about the absurdity of the procedures that colleges are using in sex abuse allegations then I do think, and many courts have said, that there may be a 14th A violation.

[Michael P]

No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.

The most common way this is implemented is by discriminating on the basis of sex, for example by creating sports teams that boys cannot join. Unconstitutional as applied.

[Michael P]

What are these procedures, any way? For example, can some person's healthy sons go get the treatments that little girls aren't allowed to get? Would it be illegal sex discrimination for a doctor to refuse to prescribe hormonal birth control to a biological male?

[mse326]

You could read the opinion. They give some examples

[Michael P]

The opinion is extremely conclusory on this front, and also contrary to actual practice and history. They say that boys can get testosterone treatments, but most boys can't -- there is no medical necessity. They also say that boys could have breast tissue surgically removed, but not girls -- again false; best reduction surgery is a thing for girls, and not banned by this law. Basing a ruling on fiction is bad.

[Krayt]

'member when Republicans and some Democrats worried the ERA would mandate women and men use the same bathrooms?

Einstein was concerned with "spooky action at a distance", where information seemed to be communicated faster than light, which Relativity forbids.

Something had to give. Either locality as a property of reality, i.e. nothing faster than light, or reality itself, the idea there are real objects out there with real, measurable properties.

So give up on the traditional concept of women and men. Poof! No conflict there.

For the record, I support people being able to do what they want with their own bodies. I don't envision a god out there getting angry.

[Toranth]

Two judges say the National Park Service's permit-and-fee requirements for filmmakers violate the First Amendment. Unfortunately for the plaintiff, it's the district judge and the dissent. D.C. Circuit: The requirements are reasonable.

Pretty mild summary for a ruling that declares that the First Amendment only protects publishing speech, but not making it.

[Drew]

"a virtually all-white group of people who engaged in massive and violent resistance to the Civil Rights Movement—some of whom burned a cross on my grandmother's lawn, two doors down from where I grew up."
What impeccable legal reasoning

[Ed Grinberg]

"Forget it, Jake. It's Chinatown."

[Davedave]

Yes, it is. Do you have any actual criticism to make?

The simply reality is he's obviously right and the law is obviously racist in intent and therefore unconstitutional. But Trump-traitors like you hate everything the US stands for, and want to destroy it; this is another example.

[Drew]

The case law is fairly clear that an amendment to a law passed with racial intent suffices to cleanse that intent. there is no requirement that the legislature enacting the amendment be comprised of a particular racial group.

[David Nieporent]

The case law is fairly clear that an amendment to a law passed with racial intent suffices to cleanse that intent.

Not if the amendment was also passed with racially discriminatory intent, which pretty much every single thing the 1968 Mississippi government did was.

there is no requirement that the legislature enacting the amendment be comprised of a particular racial group.

Don't play stupid. The point isn't that the legislature was virtually all white; the point was why the legislature was virtually all white.

[Drew]

"Not if the amendment was also passed with racially discriminatory intent, which pretty much every single thing the 1968 Mississippi government did was."

A showing of a discriminatory intent for purpose of an Equal Protection Violation requires evidence far more sufficient and direct than "southern government passed a law around a certain time period."

[Drew]

And even if the legislature was virtually all white for the reasons that you surmise (blacks kept down, similar sob stories etc.) that is likewise far too remote evidence to make out this form of equal protection violation

[David Nieporent]

Yes, the racial terror leading to and opposing the civil rights movement was just "sob stories."

[Davedave]

" there is no requirement that the legislature enacting the amendment be comprised of a particular racial group."

No, there's a requirement that it _isn't_. As you very well know.

[Davy C]

I would make a criticism that perhaps if the judge feels this way based on what people relevant to the case personally did to his grandmother's lawn, he should recuse himself.

[IsaacDanielcm]

https://upload.wikimedia.org/wikipedia/commons/thumb/d/d5/JusticeGravesPhoto.jpg/220px-JusticeGravesPhoto.jpg

Consider the source.

[Noscitur a sociis]

I'm not following. Can you elaborate?

[David Nieporent]

He's saying that he wishes he could get away with burning a cross on Justice Graves' lawn.

[David Nieporent]

Sorry, Judge Graves.

[IsaacDanielcm]

The judge is black, and appointed by a black president. There's no way he can be objective here. Blacks see everything through a racial lens.

[Noscitur a sociis]

...and that's the last comment of your that I'll be reading.

[Jerry B.]

"In its current form, the Mississippi Constitution denies the vote to any person “convicted of murder, rape, bribery, theft, arson, obtaining money or goods under false pretense, perjury, forgery, embezzlement or bigamy.”"

So how is that racist?

[apedad]

Because back in the day and even now Black people were arrested and convicted on trumped up charges or straight up false accusations

[apedad]

Or were (are) treated illegally by law enforcement

https://www.washingtonpost.com/nation/2022/07/21/mississippi-police-chief-recording-fired-dobbins/

[AmosArch]

so the obvious solution is to simply legalize crime instead of addressing the supposed discrimination. Genius.

[Ed Grinberg]

Hey, it's working isn't it? You can't argue with results!

[Ed Grinberg]

Yes. And legions of racist cops are roaming the streets of our cities, just itching to kills some Black people. Why, there was this guy named George Floyd, the sweetest man you'd ever want to meet. One day, he was strolling along a Minneapolis street, minding his own business, when a crazed racist cop showed up out of the blue, attacked him for no reason, and choked him to death!

[Davedave]

Ed. You're a racist scumbag, but also a complete idiot. You think you're being sarcastic, but you're just describing what actually happened to George Floyd.

[IsaacDanielcm]

George Floyd was a thug who shoved a gun against a pregnant woman's stomach. Good riddance. I hope he's rotting in the ground.

[Davedave]

OK, racist scumbag liar. Don't you have some cash to collect from Putin?

[IsaacDanielcm]

Putin is a patriot who loves his people.

[Davedave]

Good to see the Trump-traitors once again confirming they hate America and love Russia.

[Rev. Arthur L. Kirkland]

The Volokh Conspiracy: Official Legal Blog Of Right-Wing Racists

[bevis the lumberjack]

Thank God whites and Hispanics are never arrested and convicted on bullshit evidence.

[Sarcastr0]

But the impact...it is disparate.

To Latinos and poor whites as well.

[darkknight9]

WTH is it with Texas keeping people locked up in pretrial detention for months/years?

[Michael P]

Are they imitating the feds in DC?

[apedad]

God it must suck to be you.

[Michael P]

I'm not God, but I can see how someone with a pea brain like yours would be confused about that.

[Rev. Arthur L. Kirkland]

"Are they imitating the feds in DC?"

Ashli Babbitt isn't complaining.

[ducksalad]

IANAL but as I see it from the experiences of some friends who've been locked up locally: they're actually very fast at getting arrestees in front of a judge, sometimes in less than an hour, much faster than the traditional 72 hours. But the "hearing" is meaningless, no chance to say or explain anything. It's ten arrestees together in a single brief event. The judge sets bail off a fixed schedule and you're dragged out.

So now they've got the judge box checked off. After that, if you don't have the bail, or a lawyer to request some kind of hearing, there will be no further opportunity to see a judge until after the indictment. No lawyer was ever appointed for the friend I eventually bailed out, and it was clear none would be for *at least six months*. S/he was (they say) asked, but while confused, bloody, and shackled, and the chance was lost. The jail records when I finally got a look at them said "refused" on any kind of visitor. The jail staff - who I have to admit were very polite and civilized - told me their policy is if a detainee "refuses" a lawyer or visitor the official jail policy is to not ask again for 180 days.

So in our county a lot of people are going to stay for 6 months without ever seeing a lawyer, much less a judge. I'd guess many re people incapacitated at the critical moment and lacking in the knowledge or intelligence to demand a lawyer later.

[Ken Arromdee]

>The FCRA waives sovereign immunity by allowing civil damages claims against "any person" who violates the Act, and that plainly includes the federal gov't.

What is it with misleading descriptions of decisions here? If you read the (helpfully linked) decision, what the judge actually said was that the FCRA *expressly* says that the government counts as 'any person', which is a lot more reasonable. Short Circuit has become the equivalent of clickbait.

[Davy C]

Your objection is that they say "plainly includes" and not "expressly says"?

[KenveeB]

I agree with that complaint. I read the description and thought "That's stupid, a law that just says 'any person' doesn't include the government, government's not a person." If the law has an express provision that the government IS a person for the purposes of that law, it's an entirely different story.

[Ed Grinberg]

Mississippi's constitution disenfranchises felons convicted of certain crimes. The section was originally adopted in 1890 and at a convention steeped in racism.

So, if I decide I don't like a certain provision of my state's Constitution (or the U.S. Constitution for that matter), all I need to do is say the magic words -- "This section was originally adopted at a convention steeped in racism!" -- and poof, it's gone. Wow! It sure has been nice to have lived in a nation of laws for a while. Not no more though. Too bad...

[Rev. Arthur L. Kirkland]

The Volokh Conspiracy: Official Legal Blog Of Racist Republican Culture War Casualties

[Harvey Mosley]

I like it! "The origin of California's gun laws are steeped in racism!

*POOF*

[F.D. Wolf]

If striking down a facially neutral law because it had racist origins was a basis for invalidating laws, then that would be the end of almost every law one associates with progressivism. Progressive labor initiatives like minimum wage/maximum hours laws that began to pop up in the late 19th century were about protecting the jobs of native whites from recently emancipated slaves and immigrants who would work for less. As AFL founder Samuel Gompers put it in 1905, “The Caucasians are not going to let their standard of living be destroyed by negroes, Chinamen, Japs or any others." The racist origins of the Davis-Bacon Act of 1931, which requires federal contractors to pay "local prevailing wages" are no secret and were openly discussed during floor debate of the bill.

Likewise, family planning and contraception policies, directly descended from the eugenics movement, was initially about reducing the numbers of "undesirables", a fact acknowledged by many family-planning advocates. (1) And, of course, gun control originates in fear of recently emancipated slaves. The case of Watson v. Stone (2) is illustrative. Watson, a white man, had been convicted of possessing an unlicensed pistol. The Florida Supreme Court overturned the conviction because the pistol, in the glove compartment of his vehicle, was not in his "manual possession" as required by the statute. Justice Rivers H. Buford wrote a concurring opinion:

I know something of the history of this legislation. The original Act of 1893 was passed when there was a great influx of negro laborers in this State drawn here for the purpose of working in turpentine and lumber camps. The same condition existed when the Act was amended in 1901 and the Act was passed for the purpose of disarming the negro laborers and to thereby reduce the unlawful homicides that were prevalent in turpentine and saw-mill camps and to give the white citizens in sparsely settled areas a better feeling of security. The statute was never intended to be applied to the white population and in practice has never been so applied.

(3)

1. Andrea Jackson, Racism in Family Planning Care (June 29, 2016) https://providers.bedsider.org/articles/racism-in-family-planning-care

2. 4 So. 2d 700 (Fla. 1941)

3. Id. at 703.

[David Nieporent]

If striking down a facially neutral law because it had racist origins

I love euphemisms like "racist origins." The entire purpose of the law was to disenfranchise blacks.

[F.D. Wolf]

I'm not sure you understand the concept of "euphemisms" because I doubt many people would find the word "racist" euphemistic. What more pointed phrase would a straight-shooter like you have used instead of "racist origin"?

I doubt it was the "entire point", as the law would obviously affect whites too, nor would it affect a particularly huge number of blacks. There were obviously much more effective ways to target blacks, like literacy tests with grandfather clauses, and the state used those too.

Regardless, I'm not sure what greater point, if any, you're trying to make.

[Toranth]

He likes some "racist origin" laws, so they're somehow different.

[Drew]

States with small black populations likewise had laws disenfranchising felons. So presumably, like the progressive legislation FD Wolf highlights, the felon disenfranchisement ordinances were motivated by multiple considerations.

[Michael P]

I love when leftists try to distract with that kind of red herring. It shows they have no ability to defend against the rest of the argument.

[F.D. Wolf]

I note that the majority opinion in Price v. Garlandwas written by Senior Judge Douglas Ginsburg, who, as many will recall, was President Reagan's initial choice after the Senate's rejection of Robert Bork, but was never formally nominated after - gasp! - revelations of past marijuana use became known. At 76 years old, Ginsburg was actually the youngest member of the panel that decided the case.

Ginsburg was joined by 78-year-old G.H.W. Bush appointee Judge Karen Henderson. The dissent was written by 80-year-old Clinton appointee Senior Judge David Tatel.

[F.D. Wolf]

Price was the case upholding the National Park Service's permit-and-fee system for commercial filming as reasonable.

[IsaacDanielcm]

I don't think the government should be allowed to charge fees for anything.

[F.D. Wolf]

Fair enough, but that is a question for legislatures, not courts.

Ultimately, reality dictates that the government must "charge" someone for the goods and services it provides; the only question is who gets the bill. I believe a system of "user fees" for the direct users of a service is in most instances preferable to spreading costs to all taxpayers.

[IsaacDanielcm]

For things like bridges and roads, yes.

For "permits," no.

[Toranth]

What's absurd about this case is that the majority determined that while filmmaking is protected under the First Amendment, and the public parks are public forums for the First Amendment, filmmaking in public parks isn't actually protected because the film will probably be shown elsewhere.
And that's why they can charge fees.

The fees is a distraction, in my mind. The problem is the baby-splitting of the First Amendment. This is "You have freedom of the press, but it's illegal to buy ink" or "Own your guns, but ammo is illegal" territory.

[F.D. Wolf]

The majority didn't say it wasn't protected; it just said restrictions must be "reasonable", as opposed to applying the heightened scrutiny afforded core speech. The court notes that not every restriction would be per se reasonable; an excessive fee, for example, would be unconstitutional.

Perhaps the analysis is a bit clumsy, but essentially correct, Running a recorder is not communicative. It is part of the process, as much as purchasing film or the drive to the park. The government could probably not ban the sale of all film, but a sales tax on film (or ink) is not per se an impermissible tax on speech. (A tax can reach an impermissible level, as in Minneapolis Star & Tribune Co. v. Minn. Comm'r of Revenue, 460 U.S. 575 (1983), in which the Court struck down a use tax on paper and ink in excess of $100,000 per calendar year).

As the concurrence notes, this case is quite limited, and I suspect will nor reach far beyond its particular fact pattern. I doubt very much the Supreme Court will deem it important enough to review, assuming it is appealed.

[IsaacDanielcm]

The problem with allowing a fee, but saying it can't be excessive, is that leftist governments will always try to abuse it. Justice Thomas said gun permit fees can't be unreasonable. But if a court holds that a $200 fee is unreasonable, states like New York and California will come back with $199, and just use that as a delaying tactic.

[F.D. Wolf]

Such is the charge of courts. The Eighth Amendment prohibits "excessive bail" and "excessive fines". Ultimately, a court has to define "excessive". We may safely assume a $1 million fine for jaywalking would be struck down as excessive. If a government faced with that ruling came back and imposed a $900,000 fine for jaywalking, a court could do something drastic, like, for example, enjoin it from imposing any fines until they were pre-approved by the court. (Presumably, as well, the government does not enjoy constantly going to court and paying its opponents' attorney fees).

But, ultimately, in a democracy, you have to rely on the voters and their elected representatives to act with some semblance of responsibility.

[Toranth]

I disagree that there is any basis for this ruling to be correct on the idea that there is a fundamental difference between creating speech products and presenting them. It relies entirely on these particular judges creating arbitrary distinctions between the steps of something that they clearly admit is included under First Amendment protections. And I would say that yes, downgrading something from strict scrutiny to any other standard is effectively determining that it is unprotected, seeing how often the government automatically wins those other standards.

Requiring reasonable usage fees for public land use sounds fine to me. But the route the majority chose to follow here is absurd. Notice the section where they try to make content-based distinctions between filming in a public form and filming police officers in a public forum: hairsplitting on brand-new arbitrary differences to justify what they want, even when it flies in the face of the preexisting rulings. They knew they were wrong, and had to stretch hard to produce the necessary fig leaf. It's qualified immunity logic, but for gutting the First Amendment rather than protecting government coworkers.

[F.D. Wolf]

What you describe as "hair-splitting" I would describe as pointing out fundamental differences. The differences between, for example, filming a policeman arresting someone and filming Mt. Rushmore are self-evident. The former is happening in the moment; there won't be an opportunity for re-shoots. The latter is something that can generally be conveniently scheduled. It does not logically follow that the two merit equal degrees of constitutional protection. Of course, there might be different situations, such as filming illegal activity or employee misconduct that would render a prosecution for failing to get a permit or pay a fee unconstitutional. But filming scenery for a movie you intend to sell tickets to does not merit the same heightened degree of constitutional protection in order to safeguard First Amendment principles.

[Rev. Arthur L. Kirkland]

Judge Costa persuasively contends that Judges Smith and Wilson sucked (at the authoritarian, un-American teat) in that Fifth Circuit case involving subpoenaed testimony as grounds for firing a public employee.

The Fifth Circuit generally reflects the backward states it covers, which is unfortunate.