The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
Victory! This week, after a the-process-is-also-punishment enforcement action, an FCC administrative law judge barred the agency from stripping IJ client Joe Armstrong of his license to operate his radio station in Knoxville because of an irrelevant, years-old conviction. Read all about it in the Knoxville News Sentinel.
- Many private organizations (for example, the National Fire Protection Association) develop and copyright suggested technical standards for industries, products, and services. Federal and state gov't's then adopt those standards as binding law. Thousands of them! But often, the gov't's don't actually copy-paste those standards into the law books; they just "incorporate by reference." Is it copyright infringement for a nonprofit to post those legally binding standards online for free? D.C. Circuit: Nope. That's what the kids call "fair use." And it doesn't matter, btw, that the private associations themselves make the standards available online … in non-searchable, non-printable, non-downloadable, non-magnifiable format.
- Rep. Scott Perry of Pennsylvania supported President Trump's efforts to overturn the 2020 election. That support led to Special Counsel Jack Smith's seizing text messages from Perry's phone. District court: Cool by me. D.C. Circuit: Maybe cool, maybe not. Members of Congress have immunity for legislative acts. So texts with other members about supposed election fraud, in the context of upcoming House votes, were definitely privileged. As for "informal factfinding" texts about the election with third parties, those might be legislative and they might not be. The district court has a lot of messages to go back and review one by one.
- Families of victims of international terrorism have tried suing the Palestine Liberation Organization and the Palestinian Authority, but federal courts keep dismissing their lawsuits for lack of jurisdiction. In response, Congress enacted the Promoting Security and Justice for Victims of Terrorism Act of 2019, which provides that groups—such as the PLO and PA—that make payments to the families of incarcerated or deceased terrorists are "deemed to have consented to personal jurisdiction" in U.S. courts. Second Circuit: Due process applies to everyone, and this "deemed consent" violates due process.
- Rockingham County, Va. woman calls 911 and says her husband kicked her out of the house they both live at when she went to get ice cream and won't let her back in. And she just wants to go in and get her stuff. Yikes! She was lying about everything except the stuff. Yet, officers believe her, accompany her to the house, tell her husband to "stay" with one of the officers while she grabs some items, and then leave. (His passport goes missing.) Was it reasonable of them to believe she had a right to enter? Fourth Circuit: Yes, and it's a question of law because the facts aren't disputed. Dissent: Unreasonable. That lady was shady.
- D.C. homeowners sue contractor for a botched job. Contractor: I declare bankruptcy! Homeowners: Oh yeah? We'll get around that by alleging fraud. Bankruptcy judge: No fraud, so you're stuck in bankruptcy court, and I'm not ruling on the underlying liability for now. Homeowners: It's not worth litigating the liability because that's just part of our claim in the bankruptcy anyway. Let's voluntarily dismiss it and appeal the fraud claim. If we win, we can come back down and pursue liability. District court: Affirmed. Fourth Circuit: Very clever, but it's not a real final order; it's a gambit. Appeal dismissed.
- Nonprofit sues Jefferson, La. apartment complex that allegedly screens out all potential tenants with criminal histories, disparately impacting African Americans (who are six times more likely than whites to have been incarcerated in Jefferson Parish in recent years). Apartment: We don't screen that way, and you didn't allege there's actually a racial disparity at the complex caused by the screening. Nonprofit: Didn't need to! It's predictable enough. Fifth Circuit (over a dissent): No need to get into any of that. The nonprofit lacks standing to sue.
- Allegation: Three weeks before the end of his sentence, Louisiana inmate—a practicing Rastafarian and who hasn't cut his hair in nearly 20 years—is transferred to new facility. He presents an officer there with a paper copy of a Fifth Circuit decision that holds that cutting the hair of Rastafarians violates the Religious Land Use and Institutionalized Persons Act. The guard tosses it in the trash; the inmate is held down, handcuffed to a chair, and has his head shaved. Fifth Circuit: "We emphatically condemn" that. But RLUIPA only lets him sue for "appropriate relief" and that does not include money damages against individual officers. And though SCOTUS recently ruled that "appropriate relief" includes money damages against individual officers, that case involved RFRA, which is a "different law."
- Allegation: Reviewing footage of a shooting at a gas station, Verona, Miss. police chief recognizes shooter—he's a murder suspect in another case! Nevertheless, the chief doesn't mention this to the judge, and the shooter is let out on $50k bail. He then shoots into a house, killing one (a grandmother) and wounding two. Fifth Circuit: The grandmother's family didn't show that the chief had any reason to know the shooter would come after them specifically, so they can't sue the city under the Mississippi Tort Claims Act.
- Three doctors, a news website, a health-care activist, and two states sue a host of federal officials, alleging that the government violated the First Amendment by strongarming social media companies into removing plaintiffs' posts. The district court enjoined the government defendants from meeting with, communicating with, or flagging content for social-media companies for the purpose of removing or suppressing posts. Fifth Circuit: We affirm, but narrow the injunction to prohibit only the really coercive stuff. We also stay our opinion to allow the feds to seek Supreme Court review. (SCOTUS, per Justice Alito, has since extended the stay.)
- Twitter users who were temporarily or permanently banned for violating the platform's COVID-19 misinformation policy sue the Department of Health and Human Services, alleging First Amendment, Fourth Amendment, and APA violations. Sixth Circuit: Plaintiffs haven't shown that Twitter banned them because of the gov't's actions, and not simply as a business decision. (fn. 1: Yes, we're still calling it Twitter.) (fn. 8: Yes, we've read the Fifth Circuit's ruling, and stress that we're only dealing with the narrow facts alleged in this case.)
- Michigan prison guard often takes to Facebook to gripe about his coworkers' job performance, in one instance posting video of an inmate sucker punching him, for which he blames a fellow officer. Guard: The corrections dept.'s social-media policy, which forbids employees from discrediting the dept. or harming its reputation, is unconstitutional. Sixth Circuit (unpublished): It seems fine. And you haven't been disciplined at all so … denial of PI affirmed.
- If you are going to tell a church that its proposed walking path on an undeveloped wooded plot requires the same regulatory rigmarole as a full church building, you might want to defend your choices in a brief that does not require the Sixth Circuit to distinguish between your arguments that "even attempt to address the merits" and those that do not.
- California prohibits gun advertisements that are "designed, intended, or reasonably appear to be attractive to minors." Ninth Circuit: Ah, but the First Amendment prohibits advertisement restrictions that don't materially advance substantial government interests. California produced literally no evidence there's a problem with this advertising, sooo … . Concurrence: All this is anti-gun viewpoint discrimination, and the state should lose even worse.
- In 2004, the National Park Service prepared a mammoth environmental review for a plan to thin vegetation in Yosemite for controlled burns to better manage forest fires. After NPS makes small changes to the plan, an environmental group sues demanding another mammoth report. Ninth Circuit: Small changes don't require doing all the paperwork over.
- The Fellowship of Christian Athletes requires its student leaders to affirm a statement of faith stating that sexual intimacy may only be enjoyed within the context of marriage between one man and one woman. The San Jose Unified School District thinks that violates the district's nondiscrimination policies, which prohibit groups from enacting discriminatory leadership criteria. A First Amendment violation? Ninth Circuit (en banc with five opinions): But they waive the rule for groups that restrict membership/leadership based on ethnicity or gender. Because the rule singles out religious belief for disfavored treatment, it's subject to strict scrutiny, which it likely fails.
- Driver on I-70 in Colorado commits the monstrous crime of driving in the left lane while not passing anyone. Cop pulls him over and asks him a bunch of questions. Driver claims he's going to a Krishna Consciousness center, used to live in Arizona, and just bought his vehicle in Minnesota. Cop thinks the guy seems odd and calls in a dog sniff. The dog alerts and officers find 76 lbs. of meth. Unreasonable extension of a stop? Tenth Circuit: Suppress the evidence!
- Tenth Circuit: The Supreme Court's ruling in Bruen did not indisputably and pellucidly abrogate our precedent that permits the feds to ban people convicted of non-violent felonies (here, bank fraud) from ever possessing firearms.
- Allegation: Miami electronics distributor sells products to customer in Bolivia, which sends $9k cash payment back via courier. Yikes! The courier is a wannabe smuggler who gets caught with contraband along with the legitimate cash. The feds take the $9k. Eleventh Circuit (unpublished): And they can keep it because the distributor and customer signed their affidavits in their petition to contest the forfeiture—rather than the petition itself. (IJ filed an amicus brief urging a different course of action.)
- If a gov't agency tries to fine you and you live in the Eleventh Circuit, beware! There, if the gov't retaliates against you for having the temerity to assert your due-process rights in contesting the fine, they'll get qualified immunity because apparently you have no established right against such retaliation. And (at least for gov't contractors) they probably have qualified immunity against a First Amendment retaliation claim, too. Concurrence: These plaintiffs are out of luck, but sometime in the future we should probably say the government can't retaliate against people for exercising their due-process rights. Partial dissent: Actually, I don't think you have a due-process right at all unless the government has already taken your money.
- And in en banc news, the Eleventh Circuit (over a lengthy solo dissental) will not reconsider one of its decisions. In valiant protest of courts issuing orders that are not text searchable and having nothing to do with how nice it is outside, your humble staff declines to summarize further.
Danny and Diana Barbee operate a small stone masonry business in Tulsa, Okla., and the federal gov't is trying to ruin their lives over minor paperwork errors. The Dept. of Homeland Security says they must pay more than $30k in fines because 11 of their employees allegedly signed their I-9s more than three days after they started working, one employee signed her own form, and two employees allegedly presented the wrong form of gov't-issued ID. Notably, the feds—who conducted a three-year investigation—do not allege that the Barbees employed unauthorized persons, which are what the I-9 forms are used to guard against. Outrageous! But even more outrageous is the process the Barbees must navigate to contest the fines, in which executive agency officials serve as investigator, prosecutor, judge, and jury. But Article III and the Seventh Amendment of the Constitution require the gov't to offer the Barbees a trial by jury in front of a neutral judge, so this week they filed suit in a real Article III court. Click here to learn more.